The period of time following the loss of a spouse can be agonizing. There is simply no way to truly prepare for such a loss, even if your spouse’s death was foreseen due to injuries or illness. If the death was sudden and unexpected it can be even harder to accept. As a surviving spouse, the last thing you probably want to focus on is the legal ramifications of your spouse’s death; however, someone will need to begin the probate of your spouse’s estate as soon as possible. Given the fact that you are the decedent’s spouse, you may be wondering if probate is necessary. The probate attorneys at Frank & Kraft explain when a surviving spouse may be able to avoid probate, and when probate is required, in Indiana.
Most people leave behind an estate when they die. The size and complexity of the estate left behind can vary greatly; however, all assets that make up the estate of a decedent must eventually be distributed to the intended beneficiaries and/or heirs of the estate. Probate is the legal process that oversees the distribution of those estate assets. In addition, probate ensures that creditors of the estate are allowed to file claims and that any gift and estate taxes due from the estate are paid. Finally, any challenges to the decedent’s Last Will and Testament are litigated and resolved during probate.
Is Probate Always Required?
For the most part, issues related to the probate of an estate are governed by state laws. Consequently, both the probate process and the rules that determine when probate is required can vary from one state to another. Whether probate is required, and which type of probate you must use, will depend on several factors, including the size of the estate, your relationship to the decedent, and the type of assets involved. Most states, including Indiana, do offer alternatives to formal probate for small estates. Because formal probate can be time-consuming and costly, it is always a good idea to determine if an estate can avoid formal probate.
Can a Surviving Spouse Avoid Probate in Indiana?
If you are a surviving spouse, the only way to be certain which type of probate (if any) your spouse’s estate requires is to consult with an experienced Indiana probate attorney. As a general rule, however, the following factors will determine if your spouse’s estate can avoid probate:
- Probate vs. non-probate assets – one of the first tasks that should be accomplished by the Personal Representative of an estate is to identify, locate, and secure all estate assets. Next, those assets should be categorized as probate or non-probate assets. If your spouse left predominantly non-probate assets in his/her estate it will decrease the likelihood of the need for formal probate. Non-probate assets bypass the probate process altogether. Common examples of non-probate assets include:
- Trust assets
- Life insurance proceeds
- Certain types of jointly held property
- Accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Certain retirement or pension accounts
- Value of the estate – In Indiana, if the value of the estate assets subject to probate does not exceed $50,000 you may be able to use a simplified probate process. This simplified process allows distribution of the estate assets and requires only that a closing statement is filed with the court. Indiana also allows certain types of assets within a small estate to be transferred using a small estate affidavit after the required 45 day waiting period.
- Disputes – Even if the estate otherwise qualifies for small estate administration, you will still need to go through the more formal probate process if someone contests your spouse’s Will. Unfortunately, the only way to resolve a Will contest is to litigate the issue during probate. In that case, the probate assets cannot be distributed until the issue of the Will’s validity has been resolved.
Contact Indiana Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about probate in general, or if you wish to determine whether or not your spouse’s estate is required to go through probate in Indiana, contact the experienced Indiana probate attorneys 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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