4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Indiana terminology as to decedent's estate is similar to the terminology listed in Section 4.04.1 of the Underwriting Manual.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate. If so, specify for both situations. Provide statutory citations.

(a) IC 29-1-7-15.1 (d) provides that no will shall be admitted to probate unless will is presented for probate not more than three (3) years after individual's death.

(b) IC 29-1-7-15.1 (b) provides no specific time limit but real estate cannot be sold by personal representative to pay expenses of administration or debts not a lien of record upon such real estate unless letters testamentary or of administration are taken out within 5 months after the decedent's death.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Please provide statutory citations.

Indiana is not a community property state and dower and curtesy have been abolished in our jurisdiction. IC 29-1-2-11.

· Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Please provide statutory citations.

Indiana does recognize joint tenancies. There is not a formal procedure to pass title to jointly held property. A submitted Affidavit of Survivorship to the County Auditor will transfer the taxes into the name of the surviving tenant. The affidavit may be recorded to evidence the passing of the joint tenant, or when the surviving tenant conveys the property, the deed should contain language similar to that found in the Affidavit of Survivorship.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

According to IC 29-1-3-1 et seq. When a married person dies testate as to any part of his estate, the surviving spouse shall have a right of election to take against the will according to the provisions contained in the subsections of the chapter.

IC 29-1-3-8 provides for taking against the will by afterborn or adopted children and omitted heirs.

Summarize the steps required for a testate administration. Provide statutory citations.

After the death of the testator the person having custody of his will may deliver it to the court having jurisdiction of his estate. IC 29-1-7-3. Any interested person or a personal representative may petition the court to have the will probated and for the issuance of letters testamentary to be issued to the executor. The petitions may be combined in one. No notice is required when a will is offered for probate or has been probated. IC 29-1-7-4.

A petition for the probate of a will and for the issuance of letter testamentary shall state: the decedent's name, domicile and date of death; the name, age and place of residence of each heir or devisee so far as known or can be ascertained by the personal representative with reasonable evidence whether the heir or devisee is an adult or minor, and the name and place of residence or business address of the person designated as executor of the will. IC 29-1-7-5.

As soon as letters testamentary have been issued the clerk shall publish notice thereof, and a copy of such notice shall be served on the heirs, devisees, and known creditors of the decedent to file their claims as required by law. The personal representative shall furnish sufficient copies of the notice prepared for mailing . IC 29-1-7-7.

IC 29-1-7-9 stipulates that a will be proven by one of the methods in the statute before it will be admitted to probate.

Summarize the steps required for an intestate administration. Provide statutory citations.

Any interested person may petition the court having jurisdiction of the administration of the decedent's estate for the appointment of an administrator for the estate of any person dying intestate. IC 29-1-7-4(a).

A petition for the appointment of an administrator shall state: The name, age, domicile and date of death of the decedent; the name and place of residence of each heir so far as such are known or can with reasonable diligence be ascertained, whether the heir is an adult or a minor, whether the decedent died testate or intestate; the name and place of residence, or business address of the person to be so appointed, together with a statement of his relationship to the decedent, and such other fact, if any, which entitle such person to be so appointed; the name and business address of the attorney who is to represent the personal representative; and whether a petition to dissolve the decedent' s marriage is pending. IC 29-1-7-5.

Notice requirements following the issuance of letters of administration may be found in IC 29-1-7-7.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

IC -29-1-6-6 provides that at any time during the administration of a decedent's estate, the personal representative or any interested person may petition the court to determine the heirs of said decedent. Upon the hearing of the petition, heirship may be determined by competent evidence or if there be no objection, by affidavit. SEE ATTACHED AFFIDAVIT OF HEIRSHIP.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

IC 29-1-8-3 provides that if the value of a decedent's gross probate estate, less liens and encumbrances, does not exceed the sum $25,000.00, the costs of funeral expenses, and the costs of administration, the personal representative or a person acting on behalf of the distributees, without giving notice to creditors, may immediately disburse the estate to the persons entitled to it and file a closing statement as provided in section 4 of this chapter.

If this estate includes real property an affidavit must be filed in the office of the recorder in the county in which the real property is located. The affidavit must contain the following: the legal of the property, the following statement "It appears that the decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of the following: $25,000.00, the costs and expenses of administration, and reasonable funeral expenses"; the name of each person entitled to at least a part interest in the real property as a result of a decedent's death, the share to which each person is entitled, and whether the share is a divided or undivided interest; and a statement which explains how each person's share has been determined.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

When a petition to probate is filed, the following people can request an unsupervised administration of the decedent's estate: heirs, legatees, devisees, or the personal representative. IC 29-1-7.5-1. An unsupervised administration is granted based upon the estate's solvency, the personal representative's qualifications, the consent of heris legatees or devisees and the lack of a will requirement for a supervised estate. IC 29-1-7.5-2.

Do your state statutes provide for an "inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

IC 6-4.1-2-1 imposes an inheritance tax at the time of the decedent's death on certain property interest transfers made by the decedent. The tax applies to real property as well as personal and intangible property.

The inheritance tax is based upon the total fair market value of the property interest transferred by the decedent to the transferee minus the total amount of exemptions and deductions provided under sections 10 through 15 of IC 6-4.1-3. The tax rate is set out in IC 6-4.1-5-1 and dependent upon the classification of the transferee as either a Class A, Class B, or Class C transferee. (Classifications found in IC 6-4.1-1-3.)

An inheritance tax return must be filed in the appropriate probate court within 9 months of the decedent's death by the personal representative of a resident decedent's estate or the trustee or transferee of property transferred by the will. IC 6-4.1-4-1.

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

IC 6-4.1-8-1 provides that the inheritance tax imposed as a result of a decedent's death is a lien on the property transferred by him. The inheritance tax accrues and the lien attaches at the time of the decedent's death. The lien terminates when the inheritance tax is paid or five years after the date of the decedent's death, whichever is first.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

IC 29-1-15-11 allows a personal representative to petition the appropriate court to sell, mortgage or lease any real property of the estate. The petition shall set forth the reasons for the application and describe the property involved. Upon filing of the petition the court shall designate the time and place for a hearing. Notice of the hearing must be given to all heirs and lienholders. At the hearing the court may order the sale, mortgage or lease of the property .

When a claim secured by a mortgage on real property is payable at the time of distribution of the estate or prior thereto, the court with the consent of the mortgagee may, order the sale of the real property subject to the mortgage. This consent releases the estate should a deficiency later appear.

A personal representative of an unsupervised estate can sell, mortgage or lease property without a court order. IC 29-1-7.5-3.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citation

According to IC 29-1-15-2 when the terms of any will give the personal representative the power to sell, mortgage, lease or exchange property of the estate or is given any other power with respect to the administration of the estate, he may proceed in accordance with such power without order of the court or he may proceed under the provisions of this article, as determined by the personal representative.

A personal representative of an unsupervised estate can sell, mortgage or lease property without a court order. IC 29-1-7.5-3.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

A personal representative must have a court order to sell real property when the testator in the will does not grant the powers of sale. By operation of IC 29-1-15-2 the personal representative may sell if the powers are granted in the will in accordance with the provisions of this article.

IC 29-1-15-11 allows a personal representative to petition the appropriate court to sell, mortgage or lease any real property of the estate. The petition shall set forth the reasons for the application and describe the property involved. Upon filing of the petition the court shall designate the time and place for a hearing. Notice of the hearing must be given to all heirs and lienholders. At the hearing the court may order the sale, mortgage or lease of the property.

I.c. 29-1-15-16.5 provides that a sale of estate property that directly or indirectly benefits the personal representative is void unless authorized by 1) will; 2) trust; 3) consent of all heirs, legatees or beneficiaries or 4) an adjudicated compromise agreement.

Do your state statutes provide for the probate of foreign will (will of testators not domiciled n your state)? If so, summarize the provisions and procedures. Provide statutory citations.

IC 29-1-7-25 provides that any written will that has been proven or allowed in any other state of the U.S. or in any foreign country, according to the laws of such state or country, may be received and recorded in this state within three (3) years  as provided in sections 26 and 27 of this chapter.

According to section 26, the foreign will shall be certified under the seal of the court or officer taking such proof; or a copy of such will and the probate thereof shall be certified under the seal of his court or office by the clerk, etc. who has the custody or probate thereof. The certificate shall be attested and certified to be authentic and proper by the officer who made the certificate. If the will was probated before any officer being his own clerk, his certificate of such will or record shall be attested and certified to be authentic.

Section 27 provides that any such will described above may be introduced to the court of the county having jurisdiction in which there is any estate on which the will may operate. If the court is then satisfied that the instrument ought to be allowed as the last will of the deceased, the court shall order the same to be filed and recorded by the clerk; and the will shall have the same effect as if it had been originally admitted to probate and recorded in this state.

STATE OF       )
                          )SS:
COUNTY OF  )

AFFIDAVIT OF HEIRSHIP

Comes now (affiant) , (Affiant) being duly sworn upon his/her oath states as follows:

That Affiant is the (relationship to the decedent) of the decedent, (decedent) , deceased, who died intestate/testate, a resident of (County)---County, (State) on the (date of death)

That said (decedent) , left surviving him/her, the following: (State survivors and relationship to the decedent) . Said decedent left no other child or children, nor descendants of any predeceased child or children, and that all survivors are competent adults.

That the statements made in this affidavit are true and complete insofar as the Affiant knows and are made for the purpose of establishing the heirship of ---(decedent) , deceased.

_______________________________


_______________, Affiant

STATE OF ________)
)SS:
COUNTY OF _______)

Before me the undersigned, a Notary Public, in and for said County and State, personally appeared (affiant) , and he/she being first duly sworn by me upon his/her oath, says that the facts alleged in the foregoing instrument are true. Signed and sealed this _______ day of ________________1999.

This instrument prepared by: (Name and Address of Preparer)