When a loved one passes away, the time period that immediately follows is typically marked by heightened emotions that may swing from grief to denial to anger. The practical and legal ramifications of your loved one’s death are likely not at the forefront of your mind; however, if your loved one appointed you to be the Executor of the estate, you must focus on the legalities associated with death. The same is true if your love one died intestate, or without a Will, and you are the likely candidate to volunteer to be the Personal Representative. To help you better understand the probate process, the Zionsville, Indiana estate planning attorneys at Frank & Kraft have put together some probate resources that may be helpful. If you have specific questions, or wish to consult directly with an experienced probate attorney, please feel free to contact out office to schedule a consultation.
If you have never before been directly involved in the probate of an estate, you probably have only a vague idea of what probate is and what the process entails. When a person dies, property and other assets owned by the decedent are typically left behind. Those assets make up the decedent’s estate. Probate is the name of the legal process that ensures a decedent’s estate assets are identified, located, secured, and eventually transferred to the intended beneficiaries and/or legal heirs of the estate.
Probate also serves other related functions, including authenticating the decedent’s Will (if one was left behind), evaluating and paying creditor claims, and calculating and paying taxes due from the estate. If the decedent executed a Will prior to his/her death, the person named as the Executor in that Will becomes the administrator of the estate and oversees the probate process. If the decedent died intestate, or without a Will, a family member or close friend typically petitions the court to be appointed the Personal Representative of the estate. To eliminate confusion, the generic term Personal Representative (PR) is frequently used to refer to either an Executor or a Personal Representative.
When a Will was left behind by the decedent, the terms of that Will guide the distribution of estate assets. If the decedent died intestate, 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. Although it is from a different county, you may also find the “Probate” section of the Marion County Courts website to provide additional information about the probate process in Indiana.
Court Resources for the Pro Se (Self-Represented) Litigant
Probating even a relatively simple estate can be a time consuming and emotionally exhausting process. If the estate involves valuable and/or complex assets, or if the estate becomes involved in litigation, a Personal Representative can begin to feel overwhelmed and may make costly mistakes. For these reasons, most PRs retain the services of a probate attorney to assist them through the probate of the estate. If, however, you choose to proceed pro se, or without legal representation, you will need to know a few basics before you get started. For example, probate usually takes place in the county in which the decedent was a resident at the time of death. In this case, if the decedent was a resident of Zionsville, Indiana at the time of his/her death you would initiate the probate process in Boone County Superior Court I which has exclusive jurisdiction of probate matters throughout the county. You will be expected to be familiar with the applicable court rules and established procedures. The Indiana Courts website offers some general information for pro se litigants that may be helpful. As you will likely be probating the estate in Boone County, you should also read through the Boone County Court Rules.
Before you do anything else, however, you should consider the estate’s eligibility for an alternative to formal probate for small estates. Like most states, Indiana offers alternatives for small estates that qualify that could prevent the need for the estate to go through the lengthy, and costly, process of formal probate. To get an idea whether the estate might qualify, navigate to the Indiana Legal Services website. Note, however, that it is ultimately your responsibility as the PR to determine which type of probate is necessary which is yet another reason you may wish to consult with an estate planning attorney before moving forward.
Retaining an Attorney
If you do decide that legal representation is in your best interest given the importance of the task ahead of you, you may need help finding the right attorney to assist you. A great place to start your search is 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. In addition, both the Indianapolis Bar Association and the Indiana State Bar Association have lawyer referral services that can help you find a lawyer.
Resources for the Personal Representative
If you are the PR, you will need to prepare a petition to open probate. If you have retained (or will retain) an attorney to assist you, this is something your attorney will prepare for you. In addition, you must submit an original, signed, copy of the decedent’s Last Will and Testament if one was located along with a certified death certificate. You can obtain a certified copy of the decedent’s death certificate through the Indiana Department of Public Health’s website. The petition, certified death certificate, and original Will must be filed with the Clerk’s Office for the Boone County Superior Court I.
To ensure that you have identified all real property owned by the decedent at the time of his/her death, you may wish to conduct a search through the Boone County Assessor’s Office. You are also responsible for publishing notice of the probate in a local newspaper to notify unknown creditors that probate is underway. In Zionsville, the Zionsville Times Sentinel newspaper is one option for fulfilling the publication requirement.
Gift and Estate Taxes
In the United States, every taxpayer is potentially subject to gift and estate taxes that are calculated and paid (if due) after the death of the taxpayer from assets that make up the decedent’s estate. As the Personal Representative of the estate, ensuring that the appropriate tax returns are filed and any tax due is paid is yet another one of your duties. If you are unfamiliar with federal gift and estate taxes, 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. Several states also impose a state gift and estate tax; however, Indiana is not one of those states. Fortunately, that means you do not need to worry about the estate owning state gift and estate taxes; however, it is always wise to check with the Indiana Department of Revenue and review the state’s current requirements for filing returns for the estate of a decedent.
If you have additional questions or concerns relating to the probate of an estate, consult with an experienced Zionsville, Indiana estate planning attorney. Contact Frank & Kraft by calling (317) 684-1100 to schedule a consultation.