Stautz Law

Category: Video

  • Do You Need the Deed?

    Do You Need a Physical Copy of a Real Estate Deed?

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    Hi folks, it’s Andy Stautz with Stautz Law. I am back today for another talk about Indiana probate and estate planning. Today’s topic is a little more real estate related too, but it comes up in probate all the time.  

    And that is: do you need the deed?  

    Scenario: People Think They Need the Deed

    So where does this talk come from? Well, A lot of times I’ll have a client or potential client explaining some real estate situation. Maybe it’s an inherited property, something that they’re going to sell. And they’ll tell me, Andy, I’m pretty sure it belongs to so-and-so, but I can’t find the deed. Or, oh, I’m sure it’s my house, but I don’t know where I put the deed.  

    And they get worked up about this. Okay?  

    And so I want to discuss, do you actually need a paper copy of the deed for most Indiana real estate, I don’t know, transactions? And the answer is not really, no, especially not if it’s been recorded.  

    Most Deeds are in the Indiana Property Records

    So in Indiana, we’ve got this system of property records. They’re managed by the recorder’s office, and it’s county by county. Okay, so every county has its own recorder’s office, and that’s usually closely related to the auditor’s office and the assessor’s office. And all of those 3 government agencies work together to keep track of who owns what.  

    That’s important for citizens, obviously, so that they can you know, live their lives, do stuff, buy and sell houses. It’s important for the government so they know who owes what property taxes.  

    But anyway, each county recorder these days has electronic records. So for modern land records, and by modern I mean probably anything back to 1900, I don’t know. Most of these have been digitized. They’re electronically available.  

    How to Find a Recorded Deed

    So if a potential client tells me, oh, I’m going to have to dig through a bunch of boxes to find the deed, a lot of times the answer is, hey, don’t bother. I can look it up. I can search the property records and find it and get a PDF copy or, you know, see a version of it. And sometimes that’s specialized search software, sometimes it’s freely available.  

    It depends, again, on how the county recorder works and what provider they use to keep track of the records. So from my perspective, as an attorney, do you need the deed? The answer is usually not. And if you’re just a citizen, just an ordinary person watching this and wondering, It’s like, if you lose your paper deed, you can usually go down to the recorder’s office, go down to the county courthouse and ask for a copy. So in Marion County here, they’ve got computer terminals. You just walk in and you’ve got free use of their property record search. And you know, you pay a little copy fee if you want to print something off.  

    And a lot of counties have that.  

    What if a Deed is not Recorded?

    Okay, that entire talk though, was premised on the idea that the deed in question had been recorded. Not all deeds get recorded, and some deeds can take effect even if they’re not recorded. 

    Not all deeds get recorded, and some deeds can take effect even if they’re not recorded.  
    And then you’re in the Wild West.

    And then you’re in the Wild West, okay? And that’s a whole other talk, because Indiana’s system of determining property rights is kind of based on the idea that things should be recorded. And I don’t want to go into the technicalities because we’re already nearing 5 minutes, but you might need a deed if it’s the only evidence of a conveyance, right? If it never got recorded, it’s not in those nice electronic records, okay?  

    But to answer the general question, do you need the deed, you know, As long as it’s been recorded, it’s in the property records and anyone who’s interested can go find it. It’s public, it’s online, you know, so you don’t need to go digging through shoeboxes. But the big asterisk, of course, is those weird scenarios where it’s not been recorded. Okay, so I hope that helps. 

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  • Quitclaim Deeds vs. TOD Deeds

    Is a Quitclaim Deed the Same as a Transfer on Death Deed?

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    Good morning folks, it’s Andy Stautz with Stautz Law. I am back today for another topic on Indiana probate and estate planning. Today we’re answering a question I saw in a comment to one of my previous videos.

    The question is, Is a quitclaim deed the same as a transfer on death deed?

    Quitclaim Deeds Are Not the Same as TOD Deeds

    The answer is no, they are not the same. So I’ve talked in a bunch of places about transfer on death deeds, which I use pretty routinely as part of estate planning.  

    How Quitclaim Deeds Work

    Quitclaim deeds are different. So a quitclaim deed at its most basic is the owner, whoever makes the deed, saying, I quit, I quit, I give away my interest, It’s done. I make no claims on it. You’re quitting your claim.  

    That can be useful sometimes. I mean, if you’re just trying to just give everything away, just make sure it’s gone, you know, especially to “quiet” titles. If there’s a question about who owns what and one person says, I sign a quitclaim, I don’t own it, then that’s great because it’s final, it’s immediate 

    But that makes it kind of not a great, it doesn’t really make an estate planning tool because it is immediate, it’s irrevocable, no take backsies. Once you’ve signed a quit claim and given away your interest, it’s gone, right? It belongs to whoever you gave it to.  

    Quitclaim Deed Traps

    So sometimes I’ll see a quitclaim deed mistakenly used as part of a DIY estate plan, right? Someone will quitclaim a portion of their house to their heir or heirs. And what that does is splits up property ownership, right? It gives those other people immediate ownership of part or all of the house. That’s usually not something you’re trying to do because like I said, that means they actually own the house with you and they are jointly responsible for property taxes and other upkeep items. It also means they could conceivably sell their share or a creditor could come after their share. And if you change your mind, you can’t change, you can’t undo it without everybody’s cooperation, which might or might not be available. There are also tax consequences. Those get complicated really fast, but you’ve basically made a big gift.  

    So quitclaim deeds are powerful, but dangerous, right?  

    Comparing Transfer on Death Deeds

    Transfer on death deeds are less dangerous because all a transfer on death deed does is gives instructions to the county government on how to pass your property after you die. Okay, it’s instructions for later.  

    And even though you’re recording the deed now and naming a beneficiary now, that beneficiary doesn’t have any immediate right in your property. So if you move, you leave the transfer on death deed behind. If you change your mind, you can rewrite and re-record a new transfer on death deed. You don’t need the beneficiary’s permission to do that.  

    And the beneficiary can’t control anything in the present. Their creditors can’t reach their interest because they don’t have a present interest. They can’t sell their interest because they don’t have an interest, right?  

    Conclusion

    So a transfer on death deed, instructions for later. A quitclaim deed, washing your hands of it right away. So that’s kind of general differences. Is a quitclaim deed the same as a transfer on death deed? No, not at all. They both have conceivable uses though, as I’ve tried to just discuss.  

    To figure out which one you need in your scenario, that’s specific legal advice there. So you need to call an attorney. If you call me, talk to me, that’d be great. And we can discuss your project and how to accomplish your goals with the right type of deed for you. But as a general overview, I hope that answered the question and resolved some confusion. And like I said, for specific legal advice, reach out and we’ll work together. I hope that was an enjoyable talk and bye for now. 

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  • Does a Personal Representative Get More?

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    Good morning, folks. It’s Andy Stautz with Stautz Law, and I am back for another talk about Indiana probate and estate planning. Today, we’re talking about personal representative privileges. Really, personal representatives’ lack of privileges.  

    Background: What Does the P.R. Do?

    So, a little bit of background. The personal representative is the person in a probate estate who is in charge of running the show, right? This is a synonym of executor, if you’ve heard of that. Okay, so the personal representative is appointed by the court in both a supervised and an unsupervised estate. And they’re given these letters, letters testamentary, letters of administration, depending on the case, that gives the person legal authority to go gather up the decedent’s property, you know, set it aside in this separate estate account, manage the accounts, you know, settle claims, all of this.  

    The Personal Representative Doesn’t Get a Bigger Share

    The biggest single issue I run into with choice of personal representative or with heirs, heirship situations, you know, is when heirs are suspicious, like, does the personal representative get extra, right? Like, should we fight to be the personal representative because it’s like a privileged position?  

    And the answer very generally is no. Okay, the personal representative doesn’t get an extra share of the estate. So if there are, let’s say it’s an intestate estate, there’s no will, there’s just three adult children. Okay, the three adult children are going to get equal thirds, and the child who decides to be the personal representative doesn’t get half all of a sudden, okay, they still get equal thirds.  

    So the choice of personal representative does not affect the basic distribution scheme.  

    The choice of personal representative does not affect the basic distribution scheme.  

    Personal Representative Fees are Not a Windfall

    That said, the personal representative is allowed to take a fee, basically like an hourly rate for his or her work doing the personal representative duties, right? Because It’s a lot of paperwork. It’s a lot of administrative time. You know, you got to deal with, me, the lawyer, whatever. You got to be on the phone with a lawyer all the time. So it is work. It’s a job. And the personal representative is allowed to take a reasonable fee for that work. In general, though, and personal representatives’ fees are a big topic, I suppose, but In general, it should be indifferent, right? It should be, the fee should be just enough to compensate for the work so that anybody would take it or leave it, right? It needs to be about, it needs to be about like that. So it shouldn’t be like this big bonus to the personal representative. So that’s where, when I say it doesn’t change the distribution to be a personal representative, And yes, you get a fee, but the fee is just to make up for the work, and it is a lot of work.  

    The Personal Representative Job is Not Worth a Fight

    So there you have it. So the basic, I guess the point of recording this talk is to say, most of the time, for most people, You don’t need, siblings don’t need to fight about who’s going to be the personal representative, or heirs don’t need to fight about it.  

    Because, you know, for someone who isn’t the personal representative, you can pretty much just sit back, keep an eye on things, but just wait for your distribution at the end. You know, review the accountings and such to make sure it’s going right, but it’s easier not to be the personal representative, right?  

    And that presumes that the personal representative who does serve is a diligent, responsible person. So, if you’ve got your pick, you want, you want the most like business-like, check the box, diligent child. We’ve talked about this in other talks, right? You don’t want someone debilitated by grief. You also don’t want someone who has no fixed address. But, you know, as long as the personal representative is suited to the job, And as long as the, estate counsel, the probate lawyer is, honest and upstanding and trustworthy, (me) it’s easier not to be the personal representative. Being the personal representative is an important job. You got to do it right. But it’s work and it shouldn’t be like there are no, there are not such special privileges that it should be like a prize to be fought for.  

    Conclusion

    Okay. So I suppose that was a basic overview, but the key question is, does the personal representative get an extra share? No. Do they get a reasonable fee for their work? Yes, but I think you’d have to be pretty silly to take on the job just for the fee, right?  

    Most people do it because they want to honor the decedent and make sure their affairs are taken care of diligently and fairly.  

    That’s all I’ve got for today. Thanks for listening. And if you’ve got any questions, you’re probably on my website. Give me a call, give me an e-mail. I’d love to talk more about your specific situation. 

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  • When You Don’t Need a Probate Lawyer

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    Good morning. It’s Andy Stautz at Stautz Law, and I am back for another talk about Indiana estate planning and probate topics. Today, I’m telling you about when you don’t need a lawyer.  

    So this one’s great because, you know, instead of saying, oh no, I need a lawyer, that’s scary, you know, it’s going to cost money, whatever. Here’s when you don’t need one. Specifically in the probate context, we’re just talking about probate here.  

    General Rule: You Need a Lawyer for Estates in Probate Court

    If someone dies, you need to do something with their property. Usually that’s where you start thinking, okay, yep, we need to do a probate. And in most of the counties I practice in, you know, here in central Indiana, broadly defined, the local rules usually require that you have a lawyer if you’re going to court. So most of the counties around here don’t want you DIYing an actual probate case in court.  

    But: You Don’t Need a Lawyer if the Estate’s Not in Probate Court

    But here’s when you don’t need a lawyer. You don’t need a lawyer if you’re not doing a probate. So for instance, if a person sets up designated beneficiaries on all of their bank accounts, brokerage accounts, life insurance policies, and that’s all the property they have, then that’s all non-probate transfers. We’ve talked about this in other videos. I will link them. All those non-probate transfers, you don’t need to go to the probate court. Instead, you’ll get a packet of paperwork from the brokerage company, from the bank, from the life insurance company. And it’ll have instructions for you. It will say, you know, here’s how you, you’re the designated beneficiary, here’s how you claim it, and you follow the instructions, and you just deal with . . . the company. And as long as you do that paperwork right, you got to read the instructions and follow the instructions. But as long as you do that paperwork right, you don’t need a lawyer for that.  

    Obviously, if you are having trouble with that paperwork, you can call me and I will certainly represent you as you do that. But you don’t necessarily need one because you’re not in front of a court.  

    Trust Administration

    Okay, so same thing with, for instance, a revocable trust-based plan. If the decedent had done some good estate planning beforehand, transferred all of her assets into a trust, had a successor trustee who knows what’s going on and is ready to take up the job, again, you bypass probate, trust administration carries on just like it was. You don’t need would most trustees benefit from having a lawyer? Probably at some point, but again, a diligent successor trustee who’s been shown the ropes already in advance with good planning. Again, you can administer it. You can administer a trust without needing a lawyer or needing new lawyers.

    DIY Indiana Small Estates

    Okay, and finally, there’s the situation of a small estate affidavit, okay? This is for estates of less than $100,000 that don’t include real estate, generally, okay? Just, we’re not talking about all the details, but, so for certain small estates, if a person died with little property, almost no property, You don’t need a lawyer to fill out a small estate affidavit and present it to the bank or present it to the BMV.  

    And the BMV has a form, like has a title transfer form where you can say it’s a small estate. And legal aid or one of the Indiana legal aid providers also has a sample small estate affidavit. And I’ve got one kicking around somewhere. So I might link that.

    So this is kind of like the designated beneficiary situation where, if you’re using the small estate procedure, you’re not going to the probate court. So you don’t need a lawyer to represent you in court, but you still need to like understand what you’re doing, right? You still need to be able to fill out the form correct, like read it, fill out the form correctly, you know, go present it to the bank.  

    And obviously when you do that, you are also taking upon yourself the responsibility of dividing the property up after you gather it. Okay. So the small estate affidavit, you know, it needs to be a small estate. It probably also should be somewhere, something where the heirs trust each other, right? Because there’s no court supervision. But that’s a separate talk. Okay.  

    And again, with a small estate affidavit, you know, is it DIYable? Yes. right? There are forms out there, you can use them. But if you run into trouble, if the bank is recalcitrant or if you’re just worried about doing it wrong or, whatever, I help people prepare those all the time. I mean, that’s a smaller scale representation than a full probate, but happy to help.  

    Conclusion

    So that’s kind of three scenarios to get your mind going on. Okay, sometimes it’s possible to administer an estate without needing to hire a lawyer. So if you choose that, you know, Good luck. I think you can do it with diligence.  

    If you get into more complicated situations and you run up against something, that’s what I’m here for. I help people with these issues every day. So you’re on my website, but give me a call or an e-mail, and I’d be happy to talk about potential representation in the future. Hope you enjoyed this general informational talk. That’s all for today. Bye.

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  • Time Limits in Indiana Probate – Revisited

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    Good morning. It’s Andy Stautz with Stautz Law, and I am back for another talk about Indiana estate planning and probate topics. Today’s talk is a follow-up on a talk I made a long time ago about time limits for Indiana probate.  

    And you should probably watch or read the transcript of that talk first, in which I discuss the basic time limit of three years to probate a will.  

    And I discuss in that talk one way around the three-year limit, which comes if there is still an asset titled in the name of the decedent after three years.  

    So the basic rule is, if you’ve got the will, it needs to, you need to get it to court, you need to get it probated in the first three years after the person dies. But if for some reason you forget, there’s kind of an escape hatch for longer than three years when the title is still in the person’s name. Okay.

    How the 3-Year Time Limit Can Be Cut Short  

    I’m coming back to say that doesn’t always work. It’s one possibility. But there are other ways that the time limit can be cut short. or that the escape hatch for assets titled in the person’s name won’t work.  

    Okay, so the first thing is, once there’s been an estate administration, it’s too late to probate the will. So we’re talking about the same section of the Indiana Code, 29-1-7-15.1. Okay, G, section G is where the time limit is. Section A says, But if an unsupervised estate is over, it’s over. It’s too late. Once you’ve done this intestate administration, it’s too late to come forward with a will. Okay, so that’s one firm cutoff, right? If there’s an administration on the estate, that’s the time to get the will out in the open.  

    Escape Clause Only Applies to Assets Still Titled in Decedent’s Name

    The other problem that I want to mention is The escape hatch, which is down in subsection H, only applies to assets titled in the name of the decedent. So if something has happened and the property has changed hands, gone away, passed by a title passage or devolution affidavit, you can’t use that subsection H to rescue to rescue the administration and to introduce a will. Okay, because it’s like it’s been disbursed.  

    Conclusion: Sooner is Usually Better

    So moral of the story is, administer estates when someone dies. Or decide you don’t need to, right? But like, don’t wait. It’s really hard for me as an attorney to help a client or a potential client who says, oh yeah, so-and-so died, you know, five years ago. It’s like, well, okay, what are you waiting for? You know, that introduces new problems that wouldn’t have been there if it was, okay, six months have gone by, now we’re ready to administer.  

    It doesn’t need to be right away, but these years, the more years go by, the more problems you’re going to have, practically, as well as legally. So hope that helped as a general informational talk. I just needed a corollary out there to the previous talk. And as always, that’s general discussion of the law. If you want specific legal advice, you’re going to have to call me or shoot me an e-mail. You’re on my website. Thanks. Bye.

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  • How to Find a Will

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    Introduction

    Hi folks, it’s Andy Stautz at Stautz Law. I am back for another talk about Indiana probate. Today’s talk is how to find the will, which is a problem that comes up more often than you’d think.  

    Basics: Deciding if Estate is Testate or Intestate

    But the first step in administering a decedent’s estate is deciding whether there’s a will or not and presenting the will for probate when it’s time to do so. You need to know if there is a will and you need to find it.  

    Best Practice: Plan Ahead

    The best way is, of course, for the decedent, the person who made the will, the testator, to have told other people where the will is to be found and make sure those people, whoever it is, the designated personal representative, ideally, or just a family member, someone, can get to it.  

    So I always tell my estate planning clients when they take their wills home: put it somewhere safe, but also somewhere where your people can find it when they need it. So not a safety deposit box at a bank that only you know about, for instance. That’s not useful. 

    Obviously, there’s a desire for privacy and secrecy, and some people take that pretty far and it causes their heirs problems. It’s a behavioral risk. So best case scenario, we know where the will is because someone was told and they go find it. It’s great. Okay.  

    Other Possibilities: Will is Lost

    Obviously, a will can be just straight up lost. You know there was a will, but it’s gone. There are ways around that. including having witnesses come forward and describe the circumstances. I’ve talked about that in a separate talk. The problem with those aspects is how sure is the, you know, when you’re going to look for a lost will, how sure are you that there actually is a will?

    When you’re going to look for a lost will, how sure are you that there actually is a will?  

    I hear over and over again a client or a lead say, I’m sure he made a will. He crossed all his T’s, he dotted all his I’s. He was that kind of person. And unfortunately, you know, it’s all too common. Sure, you think you’ve done everything, but that doesn’t mean it really existed or that they really got around to it. Because people procrastinate about these things. Okay, so that’s #2.  

    How to Get the Will from Someone Else

    Number 3 is You think there’s a will and you think someone else has it. What about that? Well, the good news is you can open a probate, you can open a probate administration and then use the court’s power to call the will forth. So one way to find the will is to open a probate and then apply this section, Indiana Code 29-1-7-3, Produce will in court, contempt damages. So basically you demand the will from whoever you think has it and they have to show up with it on penalties of contempt. So that’s a possibility too. A bit more of a rare situation.  

    I’d say the most common are the person who made the will hid it too well or There actually isn’t a will.  

    Informal Search for Will

    And then there are, of course, the issue of the old lawyer who’s got a bank full of wills in a building somewhere and then retires. And the original will is in some lawyer’s files that hasn’t been seen since the 70s. So in that case, it’s kind of a game of telephone. You kind of put out the word and say, has anyone seen the last will of? Does anyone remember working with? But that’s informal, infrequent, and doesn’t often work. So that’s kind of last ditch.  

    Conclusion

    Hope that talk was useful in terms of just the general landscape of finding a will. Obviously, for specific legal advice, you need to actually consult with a lawyer and not just watch informational videos. You’re on my website, so you can give me a call. You can e-mail me. I’d love to talk about your specific situation. Thanks for watching. Bye for now. 

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  • Intestacy Rules Are Not Optional

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    Introduction

    Hello, it’s Andy Stautz at Stautz Law, and I am back for another talk about Indiana estate planning and probate. Today’s talk is just kind of a general informational discussion of how the intestacy rules work.  

    So I’ve previously made videos on what the intestacy rules are, what happens if you die without a will? That’s covered elsewhere on the site. What I want to emphasize today is a very specific point about that, which is the intestacy rules aren’t optional.  

    Main Point: Rules Not Optional

    Just because the surviving family members want, you know, want everything to go to the kids and nothing to go to the spouse. Or there’s a predeceased child and so there are grandkids and the surviving adult children don’t want anything to go to the grandkids. That’s not how the rules work.  

    You know, the intestacy rules are optional in the sense that you can make a will to get around them. But if you fail to make a will, if there is no will, then the estate administration has to proceed according to the intestate rules. There’s no, oh, we all, you know, that’s not what he wanted, for instance. You know, it’s not optional in that sense.  

    Exceptions to Intestacy Rules

    Now, I put an asterisk on this for two reasons. One, obviously you can make a will. right? The intestacy rules are entirely optional in the sense that you can write whatever you want into your will.  

    The other part of the asterisk though is sometimes if everybody really does agree, you can get around the intestacy rules using a family settlement agreement, which is a provision in the Indiana Code that lets you basically agree to compromise a controversy about estate administration. Now that’s subject to court approval, obviously, and it’s also subject to everybody agreeing, which, you know, can be obstacles in a lot of the cases.  

    Effects of Non-Optional Rules

    So I guess what I’m getting at is for people who are unhappy with how an estate administration is going or unhappy that there was no administration at all, or there’s family contention there, the favorite son or daughter doesn’t get to decide what’s going to happen just because there’s no will or doesn’t get to decide what seems reasonable to the family. There are rules about this and you need to make sure that they’re followed. 

    That could mean that you as an heir or a potential, in analyzing an heirship situation, an inheritance, you might have more rights, you might have less rights. But you can’t just take a person’s word or opinion at face value there. So that’s what I was trying to get at with this talk. Obviously, that’s very general kind of background information about like how the law works. If you want specific advice, you need to talk to a lawyer about your specific situation. I’m happy to do that. Give me a call. And that’s all I have for today. Thanks. Bye.

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  • Who is a “Child” in Indiana Probate?

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    Introduction

    Good morning, it’s Andy Stautz with Stautz Law. I am back for another talk about Indiana probate and inheritance law. Today’s talk is very specific and it’s to answer the question, who is a child for the purpose of Indiana inheritance law?  

    So… Kind of one of those issues that doesn’t seem like a big issue until you are at the margins, until you get to these close calls.  

    So who’s a child? Obviously, an ordinary biological child to married parents, definitely a child.  

    Statutory Definition

    From there, it gets a little more complicated. We’ve got a definition in the law. So Indiana Code 29-1-1-3. Definitions. Definition (a)(1), the very first one: “Child includes an adopted child or a child that is in gestation before the death of a deceased parent and born within 43 weeks after. The term does not include a grandchild or other remote descendants, nor a child born out of wedlock, except as provided in IC 29-1-2-7.” Okay, that was mostly a direct quote. I left a couple things out.  

    So if a child has been adopted, great, they’re, boom, legally a child for inheritance purposes. Because we’re in the probate code here, by the way.  

    Doesn’t include grandchildren. Okay, that makes sense, but good to have it there. 

    Does not include a child born out of wedlock, except it’s provided in this other section, 29-1-2-7. If we look at 29-1-2-7, it’s a way of kind of deciding who, like which line out of wedlock children inherit from.  

    And it is, as you might suspect, gendered. So basically you definitely inherit from the mother; on the paternal side, only if paternity is acknowledged. That’s broad strokes. I don’t want to get into the details.  

    Other Circumstances: Step-Children, Non-Adopted Children

    Then you’ve got the weird question of, okay, that handles adopted children and handles biological children, both married and unmarried. What about not-adopted children? So what if someone comes and says, well, it’s a stepchild. Or it’s a person who lived in the house and was raised as a child, but wasn’t like wasn’t formally adopted and isn’t and has no biological tie.  

    The answer in both of these cases, according to just the terms of the statute, is sorry, not a child. The Indiana Probate Code really is focusing on, you know, bloodline or legal formality. There’s no concept here of, well, we can decide that, they’re basically a child, we treat them as a child.  

    Obviously, there are equitable arguments there. You know, you never really know, get lucky with the case law. Maybe there’s a way to sort of bring those other people into the orbit of the probate code. But it’s an uphill battle, right? The statute as defined doesn’t include those edge cases, even if socially or morally or whatever, we would say, oh yeah, it’s the person’s child.  

    Avoiding Statutory Definition: Pick Your Own Heirs

    So that’s pretty harsh. That’s a pretty harsh consequence, I think, in some cases.  

    Fortunately, though, or the nice thing is, you can avoid that. You can avoid that by having a will or having a trust. Because remember, the probate code rules for what children inherit are just the default intestate rules. If you write a will, you can say, my stepchild gets, you know, shares equally with my biological children.  

    Or, you know, John Doe, whom I have reared as my own, you know, is my sole heir. 

     Whatever you want to do. So that’s kind of the tension, right? The probate code, the default rules have to draw a line somewhere and you might not like where that line is. That’s why you do planning in advance.  

    Conclusion

    So hopefully that was helpful in just kind of discussing both the intestate situation and giving you one more great reason to make sure you’ve got a will. But general information about the law is not a substitute for legal advice. If you need an analysis of your situation or you want me to talk about your case, give me a call or e-mail me. You’re on my website. I hope that talk was helpful though. And that’s all I have for now. Bye. 

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  • Choosing Trustees for Testamentary Trusts

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    Hi folks, it’s Andy Stautz with Stautz Law. I am back for another general informational video about Indiana law. Today we’re talking about testamentary trusts, specifically your choice of trustee, choice of fiduciary for your testamentary trust.  

    So I’ve recorded lots of talks about how testamentary trusts work, what they are, But basically, it’s a trust that you create in your will. So the trust doesn’t exist until the will is probated. Now all of a sudden, okay, we’ve got a trust.  

    Why the Choice of Trustee Matters

    Just like for any other trust, you need a trustee. That’s the person who is in charge of carrying out your instructions. And the choice of trustee is really important, really important, okay, because You can put any instructions you want in a trust, just about, I mean, you know, within reason, but you can get as creative as you want in the drafting. You can write any rules you want, you can make it complicated, you know, wish lists go crazy.  

    But push comes to shove, a trust only actually works, you know, Legal validity aside, a trust only actually works, only does what you want it to do, if you’ve got a trustee who’s going to carry out your instructions. That’s just behavioral hard truth. I mean, you can’t make something happen unless the trustee does it for you.  

    So you want to get it right. You want to choose a trustee who understands what the instructions are, and it’s going to carry them out and that you can count on.  

    General Trend: Individual Fiduciaries

    So the trend, and it’s been an ongoing trend since long before I was in practice, is to have like individuals, family members, friends, et cetera, serve as trustees. Okay, because I think this has to do with like bank consolidation and the loss of trust departments and increasing fees and requirements. So for many people with a small estate planning trust, right, they’re not going to have a big bank handling it for them. They’re going to name a family member or a friend.  

    Considerations in Choosing Testamentary Trust Trustee

    First Consideration: Can Your Trustee Do the Work?

    And as we’ve discussed in the past, that introduces behavioral risks, right? Because you need to make sure your trustee knows how to do the actual work of being a trustee. like making accountings, keeping an inventory, reporting to the beneficiaries if they need to do that… actually can . . . has the financial and administrative savvy to carry out the trust instructions. 

    Second Consideration: Trustee Conflicts?

    The second point is, you need to make sure it’s someone whose interests align with your interests as regards to the trust. So you don’t want a situation where the trustee is tempted to co-mingle funds or to apply trust funds to benefit his or her own life, et cetera.  

    And a common scenario here is, okay, what about the parent of a minor? If the parent of a minor is a trustee for that minor, they’re constantly going to be facing decisions like, okay, do I use my own money to pay for, childcare expenses, et cetera? Or can this be a trust distribution? Can I use trust money? And, that’s . . . maybe it doesn’t make a difference, right? But it’s something to think about. Do you want your trustee to be in a position where they make that choice or face that temptation?  

    And so, especially for testamentary trust, where the trust doesn’t have any history or pattern, it just comes into being once you’re gone. You need to be especially sure that your trustee or the person you’re thinking about naming as a trustee is going to accept the appointment, is going to know what to do, and you know, isn’t going to face conflicted decisions often or all the time about how to follow your instructions.  

    Conclusion: People and Values, not Hard Law

    This is not a realm of legal certainty, right? This is a discussion about values and people, and it’s very case by case and specific. So I realized it was general talk, but it’s one of the things we’ll talk about if you come to me for your estate planning, and it’s one thing you should definitely be talking to, you know, any attorney about if you’re in a place where you’re making a testamentary trust or considering one.  

    I hope that’s been a helpful overview. You’re on my website. Give me a call, give me an e-mail, and we’ll set up a time to talk about your specific facts. Hope that was helpful, and bye for now. 

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  • How to Prove a Will (In Indiana)

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    Introduction

    Good morning, folks. It’s Andy Stautz with Stautz Law. I am back today for another talk about an estate planning and probate topic. Today, we’re talking about proving a will. And this talk is prompted by recent experiences on the probate side of my practice.  

    Why Proving a Will is Important

    So, to begin with, what’s the point of a will? The point of a will is to express a person’s last wishes regarding the disposition of their property. Just basically, right? It’s someone saying, here’s what I want to have happen.  

    And historically, it’s been really important to make sure that the will document is actually the last wishes of that person, right? Because The person who can express those wishes is gone by the time you need the will. The person who can testify most to its accuracy, gone, right?  

    I say historically, but still, to this day, a big consideration in probating a will is, are we sure this is the right one? Are we sure this is what the deceased person actually wanted? And that’s the origin of the term probate, really, right? We gotta prove the will.  

    There are legal requirements for what makes a will and how to show that it’s the right one, that it should actually work and have legal effect. So in Indiana, and you know, I’m an Indiana attorney, this whole talk is about in Indiana, there are different routes, okay?  

    Methods to Prove an Indiana Will

    Best: Indiana Wills and Self-Proving Clause

    The easiest by far is to attach a self-proving affidavit at the end of the will document. [The statutory reference is I.C. 29-1-5-3.1] And that’s what all of my wills include. And, you know, if you’re hiring a professional estate planner, every will, you know, we’re gonna include the self-proving affidavit. Some general practitioners might omit it, but it’s good to have.  

    Why? Because the self-proofing affidavit is magic words. That means the will, when introduced to the court, just proves itself. It’s great.  

    If you don’t do that, you’ve got the backup plans.  

    Proving an Indiana Will by Subscribing Witness

    Backup plan number one is you find one or both of the witnesses, and remember, witnesses are required to witness, you know, to create a will in the first place. So you go track down the witness and you say, Please, sir or madam, will you testify that this is the right will? And you can do that by live testimony in court. You can do that by affidavit. The hard part there is you got to go find the witness. And a lot of times, you know, you just have a signature. You don’t even know where the person lives or their contact information or whatever. And it could have been years ago. So if you’re trying to find, you know, John Smith and all you know is he signed a will in Greenwood, Indiana 20 years ago, you’re not setting yourself up for success. But that’s the other option.  

    Proving an Indiana Will Otherwise

    And then the backup backup plan is the court can consider other evidence. So, family members can come and they can say, we can’t find the witness, but we’ve got this will and we think it was his will and he never gave us any indication that he didn’t want it to be his will. But is the judge going to like that? Is that the best way to do it?  

    So then the farther down this list of options you go, kind of the riskier it gets. And if you’re going into the trouble to make a will, you might as well make it in a way that you know it’s going to take effect and you know it’s going to get proven. 

    Conclusion 

    Moral of the story, do make a will. Do include a self-proving affidavit if you can. Have some sort of plan for how to prove it. And on the estate administration side, your probate lawyer is going to have to figure out which of these options is going to work in your situation.  

    That was a general talk about Indiana law. If you need legal advice or you want me to handle your estate planning or probate, that’s great. You’re on my website. Give me a call or send me an e-mail and we can talk about your specific case. Hope you enjoyed that. Thanks, and bye for now. 

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