Probate Law and Estate Planning
Probate is the court procedure by which a decedent’s property is administered for the purpose of passing ownership of assets remaining in the decedent’s name at his/her death. Whether a person dies with or without a will, any assets in the decedent’s name alone are probate assets and must go through the probate process.
Probate law requires a person to present the decedent’s will to the court. The court appoints a personal representative to administer the assets of the estate. The personal representative is responsible for collecting the decedent’s assets for his/her heirs.
Indiana law allows an estate with less than $50,000 of assets to bypass the probate process by preparing a Small Estate Affidavit which states:
- 45 days have elapsed since the decedent’s death;
- The value of the gross probate estate does not exceed $50,000;
- No application or petition for the appointment of a personal representative is pending or has been granted; and
- The claimant is entitled to payment or delivery of the property.
You may present this notarized affidavit to any institution (i.e., bank or insurance company) or person holding property of the decedent, and that institution or person is required to deliver the property it holds to the claimant.
Our firm can help in the gathering of a decedent's assets, selling assets when desired, setting up estate bank accounts, obtaining a personal representative's performance bond (when required), clearing title to real estate, filing of estate tax returns and disposing of estate creditors. Of course, there are many other duties of a personal representative, and it is our job to help our clients with as many of these duties as possible. We are experienced and prompt.
The following is a brief summary of information we will need to initiate a probate estate:
- Name of decedent;
- Decedent's date of death;
- Decedent's last known address;
- Decedent's social security number;
- Decedent's age at time of death;
- Decedent's County and State of residence at time of death;
- Counties where the decedent owned real property in other states;
- Name of Personal Representative (Executor);
- Personal Representative's (Executor's) address;
- Names, addresses and relationship of all estate beneficiaries (provide age and birth date if the beneficiary is under 18 years of age);
- Nature and approximate value of each asset in the estate;
- Date of decedent's last Will (and Codicil if applicable);
- Witnesses of decedent's last Will (and Codicil if applicable); and
- Known creditors of the decedent.
Typical Probate Procedures
- Admitting the will to probate. To begin the probate process, a formal or informal petition, with an attached original will (if there is one), is filed with the Court.
- The appointment of the Personal Representative. The Court will appoint either the named personal representative in the will or will appoint a person with priority according to state statute. The Personal Representative is responsible for handling the affairs of the estate and is usually assisted by an attorney.
- Inventory and appraise assets. Within sixty (60) days after the appointment of the Personal Representative, an inventory of the assets of the estate must be filed with the Court.
- Payment of debts, claims and taxes. The Personal Representative is required to publish notice to creditors. Creditors are notified directly by mail if they are known and unknown creditors are notified by publication in a local newspaper. Once the debts and claims have been submitted, they are paid unless they are disputed. Most creditors have three (3) months from the date of first publication to file claims against the estate. The personal representative is also required to notify known creditors of the decedent within one (1) month from the date of first publication.
- Final distribution and closing of the estate. After the statutory waiting period for keeping the estate open has expired, and all debts and claims have been paid, the Indiana Inheritance return must be prepared and the tax paid. The remainder of the estate is distributed to the beneficiaries named in the will. If there is no will, the estate will be distributed according to the intestate succession statute. After the estate is distributed, the estate can be closed.
Attorney's Fees: Traditionally, attorney's fees were calculated as a percentage of the gross estate. Fees are determined by what is reasonable and lawyers have the option of charging either a fixed fee or charging an hourly rate for services rendered. We normally charge an hourly fee, not a percentage.
Personal Representative Fees: The personal representative is also entitled to receive compensation. However, many times the personal representative is a family member and chooses not to take a fee for services as personal representative.