If you have had to deal with probating a will before you understand how the process works. For those of you who have yet to deal with a probate process, the law in Indiana has certain requirements that must be fulfilled to move forward efficiently and in a timely manner. There are no changes to Indiana Probate Law taking effect in 2023 but read on for an explanation of the relevant law and how the probate process is handled in the Indiana courts.
General Definitions:
Will: the document that is signed by the deceased, with witnesses. The first step of the probate process is verifying the will, which has been submitted to the probate court.
Heir: an heir can be both a person named in the will and any natural heirs. An example of a natural heir at law is a child of the deceased who is not in the will.
Intestate: when a person dies without a will, it is referred to as "intestate," there is a process in the probate court to handle the estate of someone who dies intestate.
Will contest: if someone named in the previous will or is an heir at law of the deceased believes that there was fraud, duress, or undue influence in the creation of the will admitted to the probate court, they may file a will contest.
Estate: the real and the intangible assets of the deceased. This can include bank accounts, real estate, personal property (like furniture), and other assets that can be passed to heirs.
Probate: the legal process where the will is first validated and then, according to the terms of the will, the estate assets are distributed to the heirs after creditors are paid.
How Long Does Probate Take in Indiana?
The probate process can vary. Some things that can slow down the probate process are if there is a will contest that must be resolved in the court or if the estate is large and complex. Before any distributions are made, there must be an inventory and accounting of the estate and any creditor's claims that have been made against the estate (for example, if the deceased received Medicaid, there will probably be a claim made against the estate). If the will is clear and unchallenged and no issues are identified for all property in the state, the probate court in Indiana usually tries to have the probate completed in six months to a year; maybe eighteen months of the estate is large and complex. Good estate planning can help to avoid a lot of the time hold-ups that can occur in probate.
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Probate starts when the will is filed with the probate court and ends when all distributions have been made; a lot takes place in the middle. Here is a simplified breakdown of the steps that are typically taken in an Indiana probate:
- Will is filed
- The personal representative is appointed (usually named in the will), also referred to as Executor
- Notice to named heirs
- Notice to creditors
- Any will contest will need to be addressed
- Estate assets inventoried and appraised if necessary, create and submit the inventory to the court
- Payment of funeral costs
- Payment of legitimate debts
- Distribution to heirs
- Close probate
How Do You Avoid Probate in Indiana?
With smart estate planning, you can avoid probate. The first and best thing to do is to consult with an experienced Indiana estate planning attorney and discuss your goals with them. Usually, a trust is created to avoid probate. A trust can name beneficiaries who will take over the trust once the original creator of the trust is deceased. A trust is a very flexible legal instrument that can dictate what is done with the assets held by the trust in the event of a death. A trust can also hold almost all of your estate, with the exception of your personal items. You can put your home in a trust and any other real estate you own. Furthermore, you can plan for multiple possible scenarios to exercise greater control over who will receive gifts and who will not. The best aspect of a trust is that any property held in the trust can pass automatically; it does not have to go into a will and go through the probate process.
You can also create PID or TOD accounts at your financial institution. These types of accounts require you to name a beneficiary who will receive what is in the account in the event of your death. There is no limit on the amount that can transfer or how many accounts one person can have. This is a method that can be sued to avoid the probate process.
While there have yet to be any updates to Indiana probate law in 2023, the time to start planning your estate is now. Consider meeting with an experienced Indiana estate planning attorney who can assist you with identifying and meetings your estate planning goals. Smart and early estate planning is not only a weight off your shoulders but will make things easier for those you leave behind. If you are looking for assistance with estate planning or handling an Indiana probate, feel free to call O'Flaherty Law; we would be happy to help you.
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