If your mother recently passed away, you are undoubtedly mourning her loss. The last thing you probably want to focus on is probating her estate. Someone, however, needs to do so. If it appears as though you are the one who will need to take control of the administration of your mother’s estate, one of the first decisions you need to make is to decide whether formal probate is necessary. It is always best to consult with an experienced probate attorney when making such an important decision. In the meantime though, an Indianapolis probate lawyer at Frank & Kraft explains the factors that help determine what type of probate will be required for your mother’s estate.
A Brief Overview of the Probate Process
If you have never been involved in the probate of an estate before, it helps to start by explaining what probate is and why it is required. Most people leave behind an estate when the die. The estate consists of everything the decedent owned, or had an ownership interest in, at the time of death. This may include real and personal property as well as tangible and intangible assets. The law wants to ensure that all of those assets are accounted for and eventually transferred to the intended beneficiaries and/or heirs of the estate. The law also wants to allow creditors of the estate to make claims against the estate and to allow people to challenge a Will if one is submitted to the court. Given all the steps that must occur during formal probate, not to mention the possibility of litigation that further slows down the process, it can take months, even years, to get through the formal probate process. It can also be very expensive which will diminish the value of the estate that is ultimately passed down to loved ones. For these reasons, it is always a good idea to determine if an estate qualifies for an alternative to formal probate for small estates.
Probate vs. Non-Probate Assets
In order to determine if your mother’s estate qualifies for an alternative to formal probate you will first need to understand the difference between probate and non-probate assets. When calculating the value of the estate assets you only include probate assets. This is because non-probate assets bypass the probate process altogether. Common examples of assets that are considered non-probate assets include:
- Assets held in a trust
- Certain types of jointly held property
- Proceeds of a life insurance policy
- Accounts designated as “Payable on Death (POC)” or “Transfer on Death (TOD)”
- Certain retirement or pension accounts
Indiana Small Estate Alternative to Probate
Most states, including Indiana, offer an alternative to formal probate for smaller estates. Each state determines what qualifies as a “small” estate and what the procedures are for distributing estate assets when using the small estate procedure. In the State of Indiana, Indiana Code Section 29-1-8-1 governs small estate administration. According to that section, anyone in possession of estate assets may distribute assets if the following conditions apply:
- The value of the probate estate does not exceed $50,000 plus funeral expenses and reasonable expenses related to the administration of the estate.
- At least 45 days have past since the death of the decedent (except when the assets is a vehicle or watercraft which may be transferred after five days)
- Formal probate has not been initiated and is not contemplated
If and estate can be probated using a small estate alternative it will save the estate money and save the beneficiaries time which is why it is always worth checking into before taking any action to initiate formal probate.
Contact an Indianapolis Probate Lawyer
For more information, please sign up for an upcoming FREE seminar. If you have additional questions or concerns about probating an estate in Indianapolis, contact an experienced Indianapolis probate lawyer 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.
Latest posts by Paul A. Kraft, Estate Planning Attorney (see all)
- Are You Cohabitating? If So, Estate Planning Is Essential - December 4, 2019
- What Legal Steps Must Be Taken after a Loved One Dies? - November 27, 2019
- Digital Assets – Are They Included in Your Estate Plan? - November 21, 2019