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If you leave behind a valid Last Will and Testament when you die, the estate you leave behind will be referred to as a “testate” estate. On the other hand, if you fail to leave behind a Will (or a trust that distributes your estate) the estate you leave behind is referred to as an “intestate” estate. Leaving behind a testate versus an intestate estate will dramatically impact what happens after you are gone.
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Probate is the name given to the legal process that follows the death of an individual. Along with inventorying and securing estate assets, probate allows creditors of the estate to file claims and ensures that taxes are paid. Eventually, any remaining estate assets are transferred to beneficiaries and/or heirs of the estate.
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No. A beneficiary is someone who is specifically named in a Will, trust, life insurance policy, or another legal document to inherit assets after your death. An heir is someone who is legally entitled to inherit from your intestate estate. A beneficiary may also be an heir and vice versa, but they are not interchangeable terms.
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An Executor is appointed in a Will. A Trustee is appointed in a trust. Either can oversee the distribution of assets; however, in the absence of a Will or trust (an intestate estate) the court will need to appoint someone to be the Personal Administrator. That person will oversee the probate process.
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Yes. Indiana offers two options to formal probate for small estates. A Small Estate Affidavit may be used if the gross estate does not exceed $100,000. If the estate does not qualify for use of the Small Estate Affidavit, Administration Without Court Supervision may be an option.
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No. Certain assets can be distributed without going through probate. Common examples include trust assets, assets owned jointly with rights of survivorship, proceeds of a life insurance policy, and retirement/pension accounts.
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It depends on whether you left behind descendants and/or parents. If you left behind neither, your spouse will get everything. If a parent survived you, your spouse gets ¾ of the estate and your parent(s) get the remaining ¼. If you are survived by children or descendants that are also the descendants of your spouse, your spouse inherits half the estate, and your children get the other half. If you leave behind a child that is not the child of your spouse, your spouse inherits half of the estate plus ¼ of the fair market value (net) of real estate.
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The goal of the Indiana intestate succession laws is to distribute assets to a legal heir. As such, a search will be made for more distant heirs (aunts, uncles, cousins) before deciding that you have no legal heirs. If, however, an heir is not located, your estate will escheat to the State of Indiana, meaning that the State of Indiana will take possession and ownership of the assets.
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Contact Us
If you have additional questions, contact an experienced Indianapolis, Indiana estate planning attorney at Frank & Kraft. by calling (317) 684-1100 to schedule your appointment today.
