When someone passes away, their property must be cared for. Even if the estate is relatively small, it is not merely a matter for family divvying up the property and deciding amongst themselves who gets what. Before the property of the deceased person can be given to others, a process of probate and administration must be completed.
Probate is initiated when the decedent’s will is presented to the probate court and a petition filed to open a probate case. In Indiana, probate matters are handled by the Superior Court system. If there is a will, the court will review it for validity. If there are no problems or objections, the judge will admit it to probate and appoint the personal representative. If there is no will or if the will is found to be invalid, the court will consider the estate intestate and appoint a personal representative. The personal representative will then proceed with the steps necessary to settle the estate and distribute its assets.
The personal representative must take control of the estate by identifying its assets and securing the property. The personal representative must also figure out the value of the estate by appraising the assets. Understanding the value of the estate it critical for the rest of the process as the personal representative must know how much money there is available to pay estate debts and expenses and how much will be left to distribute to beneficiaries and heirs.
Next, the personal representative must pay estate debt. All valid, known debt must be paid before asset distribution. Creditors must be notified of the probate case. Claimants have a deadline for filing claims. It is up to the personal representative to pay valid debt and to fight claims against the estate that he believes to be invalid. Failure to properly handle debt may put the personal representative in the position of being personally liable.
Finally, once debts and expenses are paid, title to estate assets can be transferred to others based on the terms of the decedent’s last will and testament. If there is no will, then the assets are distributed based on Indiana’s intestate succession law. Since the personal representative would have no will to go by, the law states that the assets would go to the intestate heirs of the decedent. Typically, the decedent’s surviving spouse and children would be the primary heirs. Ind. Code §29-1-2-1 Otherwise, the law gives a priority order in which other relatives would be eligible to inherit.
When there is no will, there is a potential for special complications. This is particularly the case where there are no close relatives or where there are complex family dynamics. It may be necessary to search for heirs or multiple people may come forward claiming to be heirs.
A difficult part of the probate process is when disputes arise that turn into legal battles that must be resolved in court. Probate disputes can develop at the very beginning of the process if someone challenges the legitimacy of the submitted will or the qualifications of the personal representative. Disputes can occur throughout the process if beneficiaries or heirs disagree with how the personal representative is doing their job or if they disagree on other aspects of the process. Claimants can initiate litigation if the personal representative denies their claims.
Alternatives to Form Administration
In Indiana, there are two alternative procedures for settling estates and distributing assets that are available to small estates.
Small Estate Affidavit
If an estate has a value of no more than $50,000, a beneficiary or heir can request a distribution of assets by filing a Small Estate Affidavit after the expiration of a 45-day waiting period. Upon receipt of the signed affidavit and death certificate, the property can be turned over to the affiant. While the process can used to claim money in a bank account or transfer title to a vehicle, it cannot be used to transfer title to real estate. Ind. Code § 29-1-8-1.
Simplified Probate Procedures
If an estate has a value of no more than $50,000, the personal representative can distribute all the assets to the beneficiaries and heirs. The personal representative must file a closing statement with the court and give a copy to creditors. They must also provide beneficiaries and heirs with an accounting of how assets were distributed. Real estate can be transferred using this process. Ind. Code Ann. § § 29-1-8-3 et seq.