If you recently experienced the death of a loved one, the practical and legal ramifications of your loved one’s death are probably not at the forefront of your mind. Someone, however, must be in charge of overseeing the probate of the individual’s estate. If you were named as the Executor of the estate in the decedent’s Last Will and Testament, your loved one has put you in charge of the administration of his/her estate. If your loved one died without a Will, you might also find yourself volunteering to be the Personal Representative of the estate. If you have never served as an Executor/Personal Representative, you may know very little about the process of probating an estate which is why you should consider retaining the services of an experienced Indiana estate planning attorney to assist you throughout the probate process. In the meantime, the estate planning attorneys at Frank & Kraft have put together the following Fishers, Indiana probate resources to help familiarize you with the process of probating an estate.
Almost everyone leaves behind an estate when they die. A decedent’s estate consists of everything owned by the decedent, in whole or in part, at the time of death. Ultimately, all those estate assets must be transferred to new owners. Probate is the legal process that oversees the transfer of estate assets as well as ensuring that all debts of the decedent, including tax obligations, are paid before those assets are transferred out of 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 “Personal Representative (PR) and oversee the probate of the estate. For the most part, the duties and responsibilities of an Executor and a PR are the same. For convenience sake, the generic term “Personal Representative (PR)” is frequently used to refer to either an Executor appointed in a Will or a PR who has 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 you may wish to order one of the probate related publications from the Indiana Bar Association.
Resources for the Pro Se (Self-Represented) Litigant
Probating an estate often involves complex legal and financial issues with which the average personal is unfamiliar. Consequently, most PRs retain the services of an experienced estate planning attorney to help them through the probate process. If you decide to proceed pro se, or without an attorney, however, you will need to learn court procedures and rules as well as educate yourself in more depth about the probate process to ensure that you do not make costly mistakes. Because the probate of an estate usually occurs in the county wherein the decedent was a resident at the time of death, you will likely initiate the probate process in the Hamilton County Court system if your loved one was a resident of Fishers, Indiana. The local rules, which you will be expected to know and follow, can be found on the county’s website. You will also find a limited selection of instructions and forms on the court’s website. Finally, one of the first things you must do as the PR is to determine if the estate qualifies for a small estate alternative to formal probate. Basic information about Indiana’s small estate alternative can be found on the Frequently Asked Questions section of the court’s website.
Retaining an Attorney
Like many PRs, you may decide that attempting to oversee the probate of the estate by yourself is simply too much, particularly s you are still grieving the loss of your loved one. At the same time, the prospect of finding an attorney may sound equally overwhelming at the moment. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. 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
You will find that your duties and responsibilities as the Personal Representative of the estate are abundant and diverse. To initiate the probate process you will need to obtain 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. The Will and death certificate, along with a petition to open probate, will need to be filed with the Hamilton County Courts. 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 wish to contact the Hamilton County Assessor’s Office to search the county’s records. 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. Indiana repealed its state inheritance tax in 2012 so you do not need to worry about the estate owing state inheritance taxes.
If you have additional questions or concerns relating to the probate of an estate located in Fishers, Indiana, consult with an experienced estate planning attorney by contacting Frank & Kraft at (317) 684-1100 to schedule a consultation.