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This article covers what a will is, what makes a will valid in the state of Indiana, what happens when one dies with no will in Indiana, and covers some Indiana intestacy laws most Indiana probate lawyers would want their clients to know.  It also provides a few definitions of words that are used in probate settings, like living will, decedent, and estate administration.

This article covers what a will is, what makes a will valid in the state of Indiana, what happens when one dies with no will in Indiana, and covers some Indiana intestacy laws most Indiana probate lawyers would want their clients to know.  It also provides a few definitions of words that are used in probate settings, like living will, decedent, and estate administration.

First, the following legal terms are often used by probate attorneys in intestate succession matters:  

  • "Decedent" means one who dies with or without a will.
  • “Distributee" denotes those persons who are entitled to the real and personal property of a decedent under a will or under the statutes of intestate succession.
  • "Estate" denotes the real and personal property of the decedent.
  • “Estate Administration” means handling the decedent’s real and personal property, whether it be by gathering the property, paying bills or taxes due after death, or distributing the assets.
  • "Expenses of administration" includes expenses incurred by or on behalf of a decedent's estate in the collection of assets, the payment of debts, and the distribution of property to the persons entitled to the property, including funeral expenses, attorney's fees, and miscellaneous expenses.
  • "Fiduciary" includes a: personal representative, guardian, conservator, trustee, and person designated in a protective order to act on behalf of a protected person.
  • "Interested persons" means heirs, devisees, spouses, creditors, or any others having a property right in or claim against the estate of a decedent being administered.  
  • “Living will” in Indiana means a document containing the advance medical care directives for treating health care and medical providers in the event of the individual’s incapacity.

Now, to answer some common questions that Indiana probate lawyers are asked about Indiana intestacy laws:  

What is intestacy law?

A will is a legal document that expresses the intent of a person for all of his or her assets and affairs after his or her death.  For a will to be valid, the testator must be at least eighteen (18) years of age, the will must be written, signed by the testator while of sound mind and witnessed by two disinterested persons.  When an individual dies without leaving a will behind, it is called intestate succession.  Intestacy laws are enacted by most states in order to establish a clear and definite way in which the deceased person’s affairs will be handled, in the absence of a will setting forth the deceased person’s intentions.  Intestacy laws might also be applied when a decedent leaves a will behind, but it is later found to be invalid.  

Is a will necessary in Indiana?

No.  Indiana has enacted a specific Chapter in its probate code to deal with intestate succession.

What is the intestacy law in Indiana?

Intestacy law sets forth who may take as a distributee under an intestate decedent’s estate.  There are few other issues addressed in Indiana’s Chapter on Intestate Succession because most of the other rules and procedures that apply to the administration of an intestate decedent's estate are covered by the general provisions of Indiana’s probate code.  For example, a decedent’s estate can “dispense with administration,” and be treated under the Indiana Code as a “small estate” if there is a will or if there is not a will.  Since the probate laws for “small estates” apply if there is a will or if there is not, these laws cannot be labeled “intestacy laws.”  There are many other general provisions in Indiana’s probate code that apply to both testate and intestate estates.  

Who becomes executor if there is no will in Indiana?

As mentioned in the section above, some estates can “dispense with administration” by an executor appointed by the court if they qualify as a “small estate.”  IC 29-1-8 et seq.  A small estate is one in which the value of the gross estate, less liens and encumbrances, does not exceed $50,000 and there is no real property that needs to be transferred.  This type of small estate can be handled without an executor by collecting, transferring and distributing the estate property via affidavits.  IC 29-1-8-1  

The affidavits must be affidavits made by or on behalf of a distributee.  One type of affidavit used for collection of estate assets, for example, must state the following:

(1) That the value of the gross probate estate, wherever located (less liens and encumbrances), does not exceed fifty thousand dollars ($50,000).

(2) That forty-five (45) days have elapsed since the death of the decedent.

(3) That no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction.

(4) The name and address of each distributee that is entitled to a share of the property and the part of the property to which each distributee is entitled.

(5) That the affiant has notified each distributee identified in the affidavit of the affiant's intention to present an affidavit under IC 29-1-8-1, and

(6) That the affiant is entitled to payment or delivery of the property on behalf of each distributee identified in the affidavit.

For intestate estates that do not qualify as small estates, or need to be administered by the court for other reason, any interested party can petition the court to be appointed the executor--also called the personal representative.  The court may not allow anyone 1) under the age of eighteen (18), 2) incapacitated, 3) a convicted felon, or 4) a corporation not entitled to act as a fiduciary to take the roll of executor, however.  The court is also allowed to decline appointing anyone it finds unsuitable.  Generally, courts favor appointment of an executor in the following order: 1) one designated in a testamentary document, 2) a surviving spouse, 3) a distributee, 4) the nominee of a surviving spouse, 5) the nominee of a distributee.  

Who gets inheritance if there is no will in Indiana?

The order of distributees in intestate succession can get complicated.  A generalized order, without extending beyond what most people would consider the immediate family, is:  

The surviving spouse shall receive the following share:

  • One-half (1/2) of the net estate if the intestate is survived by at least one (1) child or by the issue of at least one (1) deceased child.
  • Three-fourths (3/4) of the net estate, if there is no surviving issue, but the intestate is survived by one (1) or both of the intestate's parents.
  • All of the net estate, if there is no surviving issue or parent.

If the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent, and the decedent left a surviving child or children or descendants

  • The surviving second or subsequent childless spouse shall take only an amount equal to twenty-five percent (25%) of the remainder of:  
  • the fair market value as of the date of death of the real property of the deceased spouse; minus
  • the value of the liens and encumbrances on the real property of the deceased spouse.
  • The remainder of real property shall, at the decedent's death, vest in the decedent's surviving child or children, or their surviving child or children.  
  • A second or subsequent childless spouse shall, however, receive the same share of the personal property of the decedent as is provided to surviving spouses generally.

IC 29-1-2-1

Under Indiana law, for purposes of intestate succession, afterborn children, half (1/2)-blood children, children born out of wedlock and adopted children are treated the same as natural children born of the marriage of a decedent. IC 29-1-2-5, 6, 7 and 8  Abandonment of the deceased spouse by the surviving spouse will result in forfeiture of any distribution to that spouse, however.  29-1-2-14 and 15

What is next of kin order in Indiana?

The order of distribution is first to be as set out in the preceding section.  If there is no surviving spouse, children, children of children, or parents property will pass to brothers and sisters, nieces and nephews, grandparents, aunts and uncles, and first cousins in keeping with how closely related  they are to the decedent.  IC 29-1-2-1  

Do I need a lawyer if my family member died without a will?

Not necessarily.  There may be some instances in which the decedent’s estate involves assets or issues that require attorney involvement.  In other cases, the probate court might order that an experienced probate attorney administer the estate.  For these reasons, it is always a good idea to explain your particular situation to an Indiana probate attorney before you proceed on your own

Posted 
September 25, 2021
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