Indiana Devolution Affidavits Explained

Video

Good morning, folks. It’s Andy Stautz at Stautz Law. I’m back for another Indiana probate administration topic. And this one has been a long time coming. We are talking today about devolution affidavits.  

What is a Devolution Affidavit?

Devolution affidavits are a tool that you can use in certain circumstances to record a transfer of property from a decedent (Someone who died) to their intestate heirs (it’s an important qualification) without a formal probate administration.  

This topic is kind of a minefield because there’s a lot of gray area in terms of when and how and whether it’s the right thing to do. So we’re going to talk about what a devolution affidavit is supposed to do first and then we’ll kind of talk about some limitations. And then we’ll kind of talk about how you decide. Whether it’s it’s a good idea.  

Basic Rule: Title to Property Passes at Death

So at its most basic, a devolution affidavit is just giving effect to a provision in the probate code that says. “When a person dies, their stuff goes to their heirs.” Like that’s the basic rule, right? But to understand what happens next, you need a bunch of legal concepts.  

Exceptions to Title Passage at Death

Basically. There are a bunch of exceptions to the general rule, so the general rule is when you die, your stuff goes to your heirs. Except. The personal representative, if there is one. You know, is in charge of administration. You know, except a will doesn’t take effect unless it’s been admitted to probate. You know, creditor claims … title passes, except it’s subject to credit or claims until the nine month absolute claims bar. And so forth.  

How a Devolution Affidavit Works

Umm. So a devolution affidavit is basically supposed to say. “Here’s how that title passed. And here’s why none of those exceptions are going to be a problem for us now.” So we talked a few weeks ago or a few days ago about small estate affidavits. If the total estate’s less than $100,000, you can use this one pager to get personal property.  

OK. Well, what about real property? The devolution affidavit is basically the answer to transferring real property without probate. It’s not subject to that $100,000 small estate limit.  

What is in a Devolution Affidavit?

But it’s subject to some other. Conditions. OK, so those conditions are set out in I.C. 29-1-7-23. Just pulled up that code citation for you. And that’s where it says, OK you can. You can record an affidavit. Just like a deed that says. “This property was owned by the decedent. These are the heirs. . . that can be one person or many people. You know, here’s how it descends.”  

And you record that. And it’s effective as a transfer. And then if after the time limit for opening a probate estate comes and goes. And the creditor period comes and goes. Then it’s like, OK, nothing can disrupt this now. So it’s final.  

So anyone else who wants to buy the property or whatever can do it without worrying that a personal representative’s suddenly going to open an estate or a creditor is going to come forward with the claim.  

Finality of Devolution Affidavits; Title

Some of the gray areas are of course like what? How final is that really? Because unlike probate, where there’s a formal procedure and the court is at least a little bit involved in granting the petition. [With a devolution affidavit] you’re pretty much just relying on whoever makes the affidavit to say so about who gets the property and why.  

And as we’ve discussed in the past. You know, there’s this escape hatch in the probate code that says you can probate a will to prove passage of title of property that’s still titled in the name of a decedent. In theory, the devolution affidavit should defeat that because once it becomes effective, the property is no longer titled in the name of the decedent.  

But in practice some title companies are a little leery of this. Some Realtors don’t know how to work with it.  

How to Decide if a Devolution Affidavit Will Work for You

To sum it all up, you know, what you kind of need to know is, is there a will? Because if there’s a will the rules say you have to probate it, so no devolution affidavit for you. Is there potential family conflict? If so, probably no devolution affidavit for you, right? You don’t want to be part owners with a bunch of people who don’t get along. You know, are there other assets that would make a formal administration a better idea? You know, what are your plans in terms of sale? Does it, you know, if you’re just staying in the house, then maybe yeah, you do devolution affidavit– you don’t need to get along with your seller.  

So there are a lot of considerations, but it’s kind of this backdoor method to pass real estate down if there’s no will. You know, all you’re trying to do is move the property and you know it gains finality once the time limits pass for everything else.  

Conclusion: Seek Legal Advice

I hope that was. Some consideration of what’s out there. A full discussion of how the title passes and when it’s perfected is…. I think requires a legal background. But. That’s kind of the overview. Hope it was helpful and if you’ve got questions about this. I do them all the time. I, you know, decide whether probate is appropriate, decide whether a devolution affidavit is appropriate and you know, and charge accordingly. 

So. Give me a call if you’ve got questions. This was an overview I can give you specific advice if you are my client. Thanks and bye.