Almost one-half of American adults do not have so much as a basic Last Will and Testament in place. In the absence of a Will, the state intestate succession laws decide who will get all of your assets when you pass. For this reason alone, executing a Will should be a top priority. When you create your Will, you will be required to appoint an Executor. After you pass, your Executor will oversee the probate of your estate. Executors play a vital role in ensuring that your property transfers according to your wishes after death. To help you choose the right person as your Executor, an Indianapolis estate planning attorney at Frank & Kraft explains the guidelines for an Executor in Indiana.
Overview of Executor Duties
When you pass away, your Executor must initiate probate by submitting your Will to the probate court within the county in which you were a legal resident at the time of death. Next, your Executor needs to contact listed beneficiaries in your Will and publish a notice to creditors in the local newspaper. Creditors then have a three-month window of opportunity to present their claims or be forever barred. Your Executor will also need to determine what assets are subject to probate and which assets bypass the probate process. Once all probate property has been valued, debts and taxes satisfied, your Executor may then distribute all remaining property according to the terms of your Will.
Indiana Restrictions and Guidelines for an Executor
As the Testator of the Will, you can appoint anyone you wish as your Executor; however, there are a few restrictions imposed by the State of Indiana on who can serve as an Executor of which you should be aware. In Indiana, your Executor must be eighteen years or older, and of sound mind, meaning that he/she has not been declared incapacitated by a court. Indiana also prohibits naming an Executor who has been convicted of any federal or state felony.
Although people usually appoint a person as their Executor, an Executor can be an in-state corporation, such as a financial institution or bank, provided the business is authorized to serve in this capacity. Naming a corporation as your Executor is typically only done if you do not know anyone trustworthy enough to oversee the probate of your estate or if your estate is very large and complex.
For practical reasons, it is best to appoint someone who is a resident of Indiana as your Executor. If you must appoint an out of state Executor, be aware of the restrictions the State of Indiana places on that appointment. Indiana allows an out of state Executor if you also appoint an in-state Co-Executor. In the alternative, a non-resident can serve as sole Executor if she or he posts bond and files a written notice accepting appointment and naming an in-state agent to accept legal papers.
Because an Executor exercises a great deal of control over your property after you are gone, Indiana law requires and Executor to “act in good faith, honesty, care, and loyalty when performing duties.” Typically, the probate court will approve the Executor appointed by a Testator without any problems; however, an Indiana probate court can reject a potential Executor if he/she/it is found to be “unsuitable.” In the event that questions do arise about the qualifications of a named Executor, the court will hold a formal hearing at which your beneficiaries, heirs, spouse, creditors and other potential Executors may participate. Ultimately, the judge must approve your choice of Executor or reject that appointment and appoint a replacement.
Contact an Indianapolis Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the guidelines for an Executor in Indiana, contact an experienced Indianapolis estate planning attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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