Handling an estate through probate can be a famously lengthy and drawn-out process, but in Indiana, state law makes it possible to have an estate settled in six months or less if there are no complications. However, that is not guaranteed, and a full probate case can take a year or more. A quick probate requires a small, simple, well-organized estate; a conscientious and harmonious family or group of distributees; and a well-staffed court that processes filings expeditiously.
Few of us can expect to have all of these. Nonetheless, a little estate planning can allow loved ones to receive gifts or resources they need quickly, without the need for formal distribution through probate court. And if probate is necessary, a well-drafted will, together with family cooperation, can help head off problems before they start.
The Business of Settling an Estate
When a person dies, there has to be some legal process before the property they owned can go to the people who are entitled to receive it by law. There are several ways for this to happen, and probate is only one of them. It all depends on what exactly the deceased person, or “decedent,” had in their estate—the property they owned outright when they died.
Assets Not Considered Part of the Estate
Certain assets do not count as part of the decedent’s estate for probate purposes. This means that they can pass automatically on death to another person, with little or no process required.
- Property owned as a joint tenant with another person
- Real estate owned in a tenancy by the entirety (with one’s spouse)
- Deeds and vehicles registered as transferable on death (TOD)
- Retirement accounts
- Bank accounts payable on death (POD)
Property placed in a living trust—that is, one created while the decedent was alive—is also not part of a probate estate. Legally, the decedent did not own property that they placed in a trust, and therefore it is not part of their assets. This is a common way to avoid the difficulties of probate, especially for real estate. (However, depending on the type of trust, there may be tax responsibilities or other repercussions.)
Handling an Estate in Probate Court
In Indiana, a probate case must be opened at the circuit court or superior court in the county where the decedent was a resident. Depending on the size or complexity of the estate, there are three options:
- Small estate affidavits
This is available for a probate estate with a gross value of $100,000 or less if the decedent’s date of death was after June 30, 2022. There is a 45-day waiting period to begin filing following the date of death, but after that filing, the personal representative of the estate can begin distributions. If two months pass after the closing statement without any objections or claims, the estate is considered closed. With skillful estate planning and the use of trusts and TOD accounts, a probate estate may be small enough to qualify for this process, even if the decedent had a larger net worth.
- Unsupervised administration
If all the heirs or distributees consent and the estate does not owe more than it is worth, the personal representative may choose an unsupervised administration (unless the will forbids it). In an unsupervised administration, the personal representative has broad power to act without court approval in selling property, managing it, and conducting the decedent’s ongoing business.
- Supervised administration
If the heirs are at odds or unknown, or the estate presents particular issues such as insolvency, it may be necessary for the personal representative to file for supervised administration. In a supervised administration, the representative will have to make many more filings with the court, including for permission to sell real property. This will be a lengthier, more costly process, even if no one files a challenge.
Delays in the Process
An estate cannot be closed any sooner than three months after the personal representative publishes the legally required notice to creditors. Additionally, the court may take its own time in issuing letters of administration or necessary orders, and this is not always easy to predict.
Final tax filings, where necessary, will also move according to the agency’s schedules.
One way to expedite the probate process is by attempting to settle all possible disputes during the estate planning process. Even so, people do not always act rationally when they are bereaved, especially if they hold longstanding grievances towards each other. They may challenge the will or a particular clause, claiming it is invalid due to fraud, lack of capacity, or undue influence.
In order to avoid probate litigation, wills sometimes contain a clause that disinherits anyone who brings a challenge in court—an in terrorem clause. However, this will not apply to a beneficiary who was found to have “good cause” to bring a challenge. And it will not stop challenges or requests for rulings regarding the construction of the will or other issues.
The best solution is a clear plan, based on solid advice and known to everyone involved. Although there are many “kit” solutions offered for wills, trusts, and probate filings, it is vital to discuss your estate needs with an Indiana estate attorney. Whether you are planning your own estate, handling someone else’s, or concerned about your rights in another, we can assist you. Call Beeman Heifner Benge, P.A. today at (765) 234-8024 to schedule a consultation in our Anderson or Indianapolis offices.