When a person dies, that individual usually leaves behind an estate that consists of all assets owned by the decedent, or in which the decedent had a legal interest, at the time of death. Before those assets can be legally transferred to the intended beneficiaries and/or legal heirs of the estate, the law requires them to be identified, inventoried, and valued. In addition, creditors of the estate must be allowed the opportunity to file claims against the estate and all taxes owed must be paid. Any challenges to the decedent’s Last Will and Testament must also be resolved. All of this occurs during the legal process known as “probate.”
Formal probate is not always necessary; however, some form of probate is almost always required. Like most states, the State of Indiana offers an alternative to formal probate for small estates that qualify. The small estate probate process is faster and less costly than formal probate, allowing beneficiaries of the estate to receive their inheritance sooner.
No. Assets are divided into probate and non-probate assets for the purpose of administering an estate. One of the first things that must be done following the death of an individual is to determine which property is probate property and which property is non-probate property. Non-probate property bypasses the probate process and may be distributed right away. Common examples of non-probate property include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Funds held in accounts designated as “payable on death (POD)” or “transfer on death(TOD)”
- Certain jointly held property
- Funds held in certain retirement type accounts
One advantage to executing a Last Will and Testament prior to death is the ability to decide who will oversee the probate of your estate. If a decedent did leave behind a Will, the person named as the Executor of the Will oversees the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court will appoint someone, usually a local attorney, to be the Personal Representative.
If the decedent did leave behind a Last Will and Testament, the estate is referred to as a “testate” estate. In a testate estate, the terms of the Will, along with any other related estate planning documents, determine how the estate assets are distributed. If the decedent failed to execute a Will prior to his/her death, the estate is referred to as an “intestate” estate. In an intestate estate administration, the Indiana intestate succession laws determine what happens to the decedent’s assets. As a result, only a spouse and/or close relatives will inherit from the estate unless the decedent was not survived by any close relatives. In that case, the law looks to more distant relatives. If none are found, the estate assets escheat to the state, meaning the state gets the assets.
Any “interested” person (usually beneficiaries, heirs, or even creditors) may contest the validity of the Will submitted for probate. If a Will contest is filed, the contest must be litigated before probate can resume because the outcome determines whether a Will or the state intestate succession laws will determine how the estate assets are distributed.
Every estate is unique, making the probate process unique for every estate. Nevertheless, there are some common steps in the process, including:
- Locating an original copy of the decedent’s Last Will and Testament and obtaining certified copies of the decedent’s death certificate.
- Submitting the Will along with a petition to open probate with the appropriate court.
- Inventorying and valuing estate assets.
- Notifying creditors that probate is underway
- Evaluating claims submitted by creditors
- Paying valid claims
- Litigating any disputes
- Paying any state and/or federal taxes due
- Transferring the remaining assets to the intended beneficiaries and/or heirs of the estate.
There is no legal requirement that you hire an attorney to assist you in the probate of an estate; however, the probate process may involve a number of complicated legal concepts that require at least a basic knowledge of the applicable laws. As a general rule, if the estate requires formal probate, it is in your best interest as the Executor to consult with an experienced estate planning attorney to ensure that you do not make costly mistakes.
The probate of even a relatively simple estate will typically take months, sometimes years, to complete because probate cannot be wrapped up until the statutory time frame within which creditors may files claims has passed. Many estates take considerably longer to probate, particularly if a Will contest is filed. Beneficiaries and heirs must wait until the end of the probate process to receive their intended assets, making the length of the probate process a common reason to avoid the process when possible. In addition, probate can be costly. Everyone involved may be entitled to a fee, including the Executor, attorney, appraisers and accountant. For these reasons, people often choose to include probate avoidance tools and strategies in their estate plan.
The best way to ensure that your estate won’t get bogged own in the probate process is to work closely with an experienced estate planning attorney when creating your estate plan. Some common probate avoidance tools, however, include:
- Lifetime gifting – the more assets that are transferred before your death, the smaller the estate will be that you leave behind to probate.
- Converting probate assets to non-probate assets. For example, making sure that titles to real property are jointly titled with rights of survivorship.
- Using a trust. Trust assets avoid probate. By transferring assets into a trust and providing for their distribution using the trust terms, those assets all bypass the probate process.