Everyone handles the death of a family member or loved one in their own unique way. There simply is no rule book for processing loss. If you recently lost someone close to you, and you were also named as the Executor of the estate in the decedent’s Last Will and Testament, however, there are rules and procedures to follow when it comes to probating the decedent’s estate. Although not legally required, retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is a wise choice. In the meantime, it always helps to have some idea where to start and what resources are available. With that in mind, the estate planning attorneys at Frank & Kraft have put together the following Greenfield, Indiana probate resources that you may find helpful during the administration of the estate.
Probate Basics for the Beginner
The assets owned by a decedent at the time of his/her death must eventually be transferred to the intended beneficiaries and/or legal heirs of the estate. Probate is the name given to the legal process that ultimately results in the transfer of those assets. Probate also serves several additional important functions, including authenticating the Will, identifying and valuing of assets, notifying creditors of the estate, and the paying debts of the estate, including taxes. If the decedent executed a Last Will and Testament prior to death, the individual appointed in that Will to be the Executor will be responsible for overseeing the probate of the estate. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative” (PR), subject to approval by the court, and oversee the probate of the estate. The duties and responsibilities of an Executor and Personal Representative are essentially the same. As such, the generic term “Personal Representative” is frequently used to refer to either someone appointed in a Will or who volunteered for the position. Additional information about the probate process can be found on the American Bar Association’s website.
Resources for the Pro Se (Self-Represented) Litigant
As the Personal Representative you will need to get started with the probate process as soon as possible. Typically, probate is initiated in the county wherein the decedent was a legal resident at the time of death. Therefore, if the decedent lived in Greenfield County, Indiana, probate will likely be initiated in the Hancock County Circuit Court. Though you are not legally required to retain an attorney to assist you, the complexity of the probate process, coupled with the time and attention you must spend on it, causes most PRs to hire an experienced estate planning attorney. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the applicable laws as well as the court rules and established procedures. Although the Hancock County Courts website does not offer specific self-help information relating to probate, they do have a self-help section that may be of some help. The Indiana Judicial Branch also has an excellent Self-Service Legal Center that you can access on their website. You will also be required to learn and understand the court rules if you decide to proceed pro se. Before moving forward, you will need to determine which type of probate is required. If the estate is modest it may qualify for an alternative to formal probate for small estates. Information to help you decide can be found on the Indiana Legal Services website.
Retaining an Attorney
If you decide that going it alone isn’t for you, you may be equally intimidated by the prospect of finding an attorney to assist you. One place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law.
`Resources for the Personal Representative
As the Personal Representative of the estate you will have numerous duties and responsibilities throughout the probate process. To get the probate process started you will need to file the appropriate petition with the Hancock County Circuit Court. Along with the petition you will also need to submit the decedent’s original Last Will and Testament and a certified copy of the decedent’s death certificate. The death certificate can be obtained through the Indiana Department of Public Health’s website. As the Personal Representative (PR) you are responsible for ensuring that all real property owned by the decedent is accounted for during probate. Toward that end, you may find the Hancock County Assessor’s website useful as it allows you to search real estate records for Marion County by owner’s name. You are also responsible for publishing notice of the probate in a local newspaper to notify unknown creditors that probate is underway. The Greenfield Recorder is one option for publishing the required notice.
Gift and Estate Taxes
Finally, because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If the estate does owe federal gift and estate taxes, that tax debt must be paid in full before assets can be transferred out of the estate to beneficiaries or heirs of the estate. Although some states also impose a state level gift and estate tax, Indiana is not one of those states. It is, however, always wise to check with the Indiana Department of Revenue to determine if a return needs to be filed for the estate and/or the decedent.
If you have additional questions or concerns relating to the probate of an estate, consult with an experienced Greenfield, Indiana estate planning attorney. Contact Frank & Kraft by calling (317) 684-1100 to schedule a consultation.