Probate in Indiana, also known as estate administration, is a process in which a court case is used to transfer estate assets required in cases for the management and distribution of a decedent's assets with or without a will.
Yet, we still receive calls from local residents asking if they can just skip the formal probate process and deal with the deceased's assets privately amongst family. The answer to that question in most cases is “no”. Here's what happens if you don't contact the probate court after the loss of a loved one:
- Legal transfer of assets cannot happen.
If the estate is large enough to trigger probate, any assets owned by the deceased (without a beneficiary designation) cannot be transferred to any member of the family without court approval. Even if a family member quietly moves into the deceased's home, a problem will eventually arise when he or she tries to sell the property as it will not have a clear title. If you skip probate when it's required, it will eventually catch up to you.
- A personal representative does not have the authority to act.
If the estate assets exceed the state limit, the person appointed in the Will as personal representative (or the petitioner if no will) need an order of the court granting authority to administer the estate. Without it, the estate assets will not be transferred.
- The validity of the will may not be proven.
Just because the decedent leaves a will, that doesn't mean the executor can just distribute assets according to the decedent's wishes. Again, the court needs to determine the authenticity of the will. Common problems with Last Wills and Testaments include the absence of the testator's required mental state, lack of specificity, and improper witness signature. These problems can only be sorted out through probate litigation.
Are there any exceptions?
It may be possible to avoid probate if you put certain planning strategies into place while you are still alive. One common way to avoid probate is by creating a Revocable Living Trust. When the trust creator dies, the trust assets are passed down to the beneficiaries with minimal court involvement.
In the case of real property, joint tenancy may be a practical option to avoid probate. Joint tenancy means the property has more than one owner. All joint owners have equal rights and obligations. When one of them passes away, his or her share of the property immediately transfers to the surviving owner. Again, in such a situation, no court proceeding is necessary.
Other assets with named beneficiaries may also be transferred outside of probate. Life insurance proceeds, for instance, are generally not part of the policyholder's estate if the policy has a named beneficiary. When the policyholder dies, the beneficiary receives the death benefit without probate. But if the policyholder doesn't have a named beneficiary, the life insurance proceeds become part of the estate after death and will need to go through the probate courts.
Nonetheless, it's worth noting that laws regarding transfer of properties and assets from a decedent to the heirs vary from state to state. If you have questions about how to avoid probate in Allen county without legal repercussions down the road, contact (260) 969-1177 or click here click here to schedule an appointment.