Sorting out the mysteries of probate
Probate is not a four-letter word, but many consider it just as odious. Avoiding probate may be attainable by which of the following:
A. Dying without any solely owned property
B. Dying with only $50,000 in solely owned property
C. Dying with all assets paid on death (POD) or transfer on death (TOD)
D. Dying with jointly-owned assets
E. Dying with all assets in a revocable trust
This article and the next one will explain Indiana probate law, and perhaps take some of the confusion out of understanding the process.
When a person dies with a will (called testate) or without a will (called intestate), a probate estate may been required. For example, Uncle Jim Dandy died owning the following assets:
Dandy’s probate estate is the house and household goods. If Dandy had placed his house in a revocable trust, it would have been transferred upon his death to the trust beneficiary, and the household goods (since under $50,000) could be transferred by an affidavit to his heirs without any probate.
But Dandy didn’t use a trust, so the house and household goods are subject to probate. Usually an heir (when there is no will) or the executor named in a will begins the probate process by petitioning the court to open the estate. The probate court is located in the county of the deceased’s legal residence. For example, Dandy died a resident of Marion County, so his estate is probated in Marion Superior Court 8, Probate Division.
The probate petition may request either supervised or unsupervised administration. The basic difference is in the court involvement. If supervised, every act of the personal representative administering the estate must be approved by the court, such as sale or distribution of the assets, personal representative and attorney fees and a detailed accounting. If unsupervised, the estate is opened, and inventory of the assets filed, then a closing statement is filed at the conclusion of probate, so the court is involved only in the opening and closing. Unsupervised administration may be requested in the decedent’s will or by all the estate beneficiaries. Generally, unsupervised probate is less expensive because the attorney doesn=t need to obtain court approval for all the personal representative’s acts.
If there is a will, it must be presented to the court. No one can serve as personal representative if he or she has a felony conviction. The court may require a bond to ensure proper performance by the personal representative.
The next article will describe the personal representative’s duties and the probate process from inventory to closing.
