Probate is the legal process of transferring property from the estate of someone who has died to the persons entitled to receive it. In Indiana, probate can be supervised by the probate court or unsupervised, depending on the terms of the will or the circumstances of the estate. And some estates need not be probated at all.
Testate or Intestate
Whether someone dies with a will, termed testate, or without a will, termed intestate, some type of probate proceeding is usually required. But not all property must go through probate -- only property solely owned by the deceased in her own name. Other assets, such as property held in joint tenancy with right of survivorship or payable-on-death accounts, are transferred to joint owners and beneficiaries outside of probate.
Transfer by Affidavit
If the value of an estate is under $50,000 and does not contain real estate, the person entitled to the property can wait until 45 days after the death to file an affidavit stating that no probate has been opened and that he has given all interested parties notice of the affidavit. He must also provide other information required by the statute. He then presents the affidavit to anyone holding personal property belonging to the deceased, and they must turn over the property to him.
Simplified Probate Procedure
If real property is included in a small estate worth less than $50,000 in Indiana, the personal representative must open a probate proceeding in court, but he can use a simplified probate procedure, termed summary administration. Without notifying creditors, he can distribute the property to the persons entitled to receive it. The only document he must file with the court is a closing statement describing his actions. If real property is involved, he files an affidavit in the recorder's office in the county in which the property is located that states the names and addresses of all the deceased's heirs or beneficiaries who might have some ownership interest in the property.
Read More: Where to Probate a Will
Probate With a Will
A valid will often names an executor, the person chosen by the deceased to move the estate through probate. The executor files the will in probate court in the county where the deceased person resided, together with a petition for probate. The court then issues an order appointing her executor.
The next step is to prove the will by having the persons who witnessed the signing of the will testify in court that the deceased was competent when he signed the will. If the witnesses signed a self-proving affidavit before a notary at the time of will signing, proving the will is not necessary. The executor collects the estate assets, pays bills and debts, and files tax returns before distributing estate assets to the beneficiaries.
Probate Without a Will
If someone dies without a will in Indiana, his property passes to his nearest family members under the state's intestate statute. Generally, a surviving spouse and children of the deceased inherit in different shares set out in the law, depending on the number of children and whether or not they are also the children of the surviving spouse. Parents and siblings of the deceased may also inherit a share of the estate if the deceased has no children. For example, if someone dies leaving a spouse and parents, but no children, the surviving spouse receives three-quarters of the estate and the parents receive the remainder.
Intestate estates are subject to probate in Indiana. The personal representative is appointed by the court. She collects estate assets and pays bills before distributing the estate property pursuant to intestate succession laws.
Supervised and Unsupervised Probates
The personal representative of an estate in Indiana has two options: she can request a supervised probate or an unsupervised probate. The court's role is greater in the former, more relaxed in the latter. Most Indiana probates are unsupervised.
Supervised probate is similar to formal probates in other states. The personal representative reports every step to the probate court for approval. She prepares an inventory of the estate assets and files a certificate of preparation with the court. She cannot sell or distribute any property without court approval. When administration is completed, she files a final report together with a full financial accounting and a proposed distribution plan. Distribution of the estate is permitted only after court approval.
Unsupervised probate involves fewer expenses and court filings. Personal representatives perform many functions without court permission that would require court approval in a supervised probate, such as taking out a mortgage on real estate or selling it outright. At the end of an unsupervised probate, the personal representative provides all beneficiaries and heirs with an accounting. If it appears that she acted improperly, the issue can be raised in court. If even one heir or beneficiary objects to unsupervised probate, the probate must be supervised.
If no executor is named in the will, or the named executor refuses to serve, the probate court appoints someone to serve in that capacity, usually called an administrator. Both executors and administrators are also referred to as personal representatives.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.