During the days and weeks following the death of a loved one, the practical and legal ramifications of your loved one’s death are not usually at the forefront of your mind. If you were named as the Executor of the estate in the decedent’s Last Will and Testament, however, your loved one is counting on you to be able to put aside your grief to the extent necessary to handle administering his/her estate. The same applies if your loved one died without a Will and you are the obvious choice to volunteer to be the Administrator of the estate. Retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is certainly advisable. To get you started though, the estate planning attorneys at Frank & Kraft have put together the following Indianapolis, Indiana probate resources.
If you are new to the concept of probate, it helps to familiarize yourself with the process and procedures involved in probating an estate before you get started with your loved one’s estate. Probate serves several important functions, including providing a legal framework within which the decedent’s assets are transferred to the new owners, ensuring that all creditors of the estate are paid, calculating and paying any taxes obligations, and settling any disputes surrounding the estate.
The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the Administrator and oversee the probate of the estate. The duties and responsibilities of an Executor and Administrator are essentially the same and the generic term “Personal Representative” is frequently used to refer to either someone appointed in a Will or who volunteered for the position. In a testate estate, the terms of the Will dictate how the estate assets are distributed whereas in an intestate estate the Indiana intestate succession laws govern the distribution of the decedent’s estate assets. Additional information about the probate process can be found on the American Bar Association’s website or on the “Probate” section of the Marion County Courts 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 Indianapolis County, Indiana, probate will likely be initiated in the Marion Superior Court Probate 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. General information about representing yourself in court can be located on the Indiana Courts website. The Probate Court rules can also be found on the Probate Court’s website.
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. Probate forms that you may need can be found on the “Forms” section of the court’s 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 Marion County Probate 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 Marion 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 IndyStar 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.
If you have additional questions or concerns relating to the probate of an estate, consult with an experienced Indianapolis, Indiana estate planning attorney. Contact Frank & Kraft by calling (317) 684-1100 to schedule a consultation.