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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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.
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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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 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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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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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.
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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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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Hi folks, it’s Andy Stautz at Stautz Law. I am back today for another talk about estate administration (in this case). We are talking about houses and their effect on estate income taxes. This is timely because it is tax season when I’m recording this, which is mid-February.
So one thing we’ll discuss if you do a probate administration with me (and just as a background talk about Indiana law for anyone who’s interested), a house is a common item of estate property. A lot of the times we’re opening a probate estate specifically because there’s a house to deal with, to be sold.
Estate Income Tax
Also, estates, just like people, owe income taxes. [The return form for estate income taxes is IRS Form 1041.] So if an estate has income, it has to pay taxes on that income. This is separate from the federal estate tax. Okay, this is like, this is an income tax.
And so at this time of year, I’m advising probate clients and, you know, saying, okay, well, what do we do about estate income taxes? And if you had a house in the estate and you’ve sold it, It’s like, okay, well, what are the tax consequences of that?
Common Scenario: No Income on House Sale
And the basic answer is, oftentimes it’s a wash. Because, as we’ve talked about in a previous video, probate assets get a step up in basis. So that means when the estate gets the house, the person dies, the house goes from that person to their estate, the house comes into the estate with a basis of whatever the date of death value was. Therefore, if you sell the house a couple months later as part of an estate administration, you basically have a 0 gain.
Let’s say a person dies with a house, it’s worth $200,000, you sell it a month later for $200,000, You’ve got a $200,000 basis and a $200,000 sale price and 0 capital gains and 0 income, which is nice.
So oftentimes I’m able to say, don’t worry about it. That’s kind of the point of this talk is you need to think, you know, when you’re doing an estate administration, you need to make sure that you’re keeping up with taxes. It’s part of the personal representative’s duty.
Conclusion: General Information vs. Specific Advice
This is something if you’ve got an estate with me, we’ll definitely be talking about. But as a general informational talk about Indiana law, it’s okay, keep that in mind. Think about how your estate as an entity generates income or doesn’t on its own and make sure you pay the taxes that are owed because that’s part of the duty. So just a quick talk, quick note about that one. I’m not primarily a tax advisor. But this is just a little item of law that comes up over and over and was worth a general overview. If you need specific advice, you need to talk to me specifically, you need to talk to me and not just depend on informational videos. If you need legal advice, you’re on my website. Give me a call, give me an e-mail and we’ll talk about, you know, you in particular.
Hope you enjoyed it. Thanks and bye.
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Good morning, folks. It’s Andy Stautz at Stautz Law. I am back today with another talk about Indiana estate planning and probate law. Today is kind of a big topic, and it’s going to be maybe a disorganized talk, but we need to talk about mortgages, specifically mortgages of people who have died. because it’s probably the single like biggest source of difficulties in probate administration.
It’s definitely one of the top reasons potential clients call me needing help: is something goes wrong with a property specifically, usually a mortgage of someone who died, maybe a year ago, maybe two years ago, maybe five years ago. Okay.
Key Point: You Have to Do Something
So I think the first like key point is you’ve got to do something. You’ve got to do something. When someone dies with a house, you know, the personal representative, the heirs, the family, Somebody’s got to step up and deal with the mortgage lender, assuming there is one. You can’t just carry on and hope it all works out, right?
The sooner you come up with a plan, the better it’s going to go, okay? So opening a probate estate is great, because we’ve got very formal rules, right? We’ve got this whole probate code that explains how to handle these things. The mortgage companies know how to work with that. Probate attorneys know how to work with that. You know, you’ll have clear direction, you know, as an heir and as a personal representative.
I think what gets a lot of people into trouble is usually in practice, you know, you can kind of like keep paying a mortgage in a decedent’s name for at least a while. And there’s actually law dictating that mortgage companies have to like let you, give you a grace period, right, to figure things out. But that grace period isn’t forever. And so the longer you wait, the more problems you’re going to have.
So if you’re a potential client, you’re calling me because there’s a mortgage foreclosure proceeding. It’s usually like, okay, well, we wish we could have fixed this sooner.
Mortgage as Secured Debt
So the underlying concept, of course, is that unlike personal debts, like a credit card debt or a medical bill, a mortgage loan is secured on a house, right? And it attaches. So even though the homeowner has died, that mortgage debt doesn’t like go away automatically: because it’s not attached to the person, it’s attached to the house.
So usually, no matter the scenario, formal probate administration, informal resolution, whatever, you’re going to have to do something. The mortgage doesn’t just go away.
Win-Win Scenarios
The nice thing is, like most banks don’t want to, don’t want to foreclose and repossess a house and sell it at auction, right? What they want to do is for the heirs, you know, somebody to assume the loan and keep paying it, or, you know, sell the house and pay off the mortgage balance.
So usually, usually, this is very general, lots of times, if you’re going to do that, it’s worth it to go, like, tell the lender, because they’ll be like, okay, great. Because that’s a good outcome for everybody, right? If you inherit a house and your intention is to sell it and pay off the mortgage balance, the mortgage lender is going to be happy with that. You’re going to be happy with that, right? So it’s just kind of a matter of communication.
There are provisions in the probate code to like pause a foreclosure action . . . Almost like a stay in bankruptcy. . . Like a pause button. Because a lot of people, if you inherit a house that has a mortgage, it could strain your cash flow, your personal finances, to keep paying the decedent’s mortgage while you, prepare to sell the house, sell the house.
Anyway, like I said, kind of an unfocused talk, but the point of the story is you got to deal with it. Sooner is better than later, and you’ve got lots of options. Um, on how to go about it and make, make everybody happy.
So hopefully if you see this and you’ve got a inherited mortgage on your mind or an inherited house on your mind, you’ll, you’ll say, oh, right. I need, I need to do something like talk, talk to a probate attorney, talk to someone and get specific legal advice for your situation. Cause, um, like a lot of my clients, I could, you know, The longer you wait, you get deeper in, it’s harder to fix. So kind of sooner the better there.
But that was all very general. Specific legal advice requires you to talk to a specific attorney for specific advice about your specific situation. You’re on my website. Give me a call. I’d love to talk. I hope you enjoyed that one. And bye for now.
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Good morning, folks. It’s Andy Stautz at Stautz Law. I am back today with another talk about Indiana probate law and estates. Today we’re talking about the spousal allowance. And this has its own section in the probate code, Indiana Code 29-1-4-1. And it is exactly what it says on the tin. It is an allowance of $25,000 for the surviving spouse of a decedent.
So in an estate administration, let’s say someone dies, they leave behind $100,000 worth of stuff, $25,000 of that goes straight to the surviving spouse before any creditors are paid, before anyone else gets a distributive share. It’s just kind of like automatic, okay?
This has deep roots historically. Back when women didn’t have as many rights, this was kind of like a widow’s provision, okay, to make sure that specifically a widow would have enough to live on, and that goes back to biblical times and whatever. So deep roots in there historically, and it’s kind of still there.
Obviously, women have rights now. The spousal allowance applies to both husbands and wives now, not just widows. But it’s an important thing to know about, I think.
Firstly, because, you know, it’s $25,000, that matters when you’re administering an estate.
A couple interesting things about this provision, just for background. In the definitions section of the probate code, “net estate” is defined as the estate after the spousal allowance has been taken. So this really does come right off the top.
Second interesting thing is the spousal allowance has stayed $25,000. There is a another key number in the probate code, which is the small estate limit, okay, below which you don’t need to do a formal probate. And that used to be $25,000 too. So it kind of made sense for the small estate limit and the spousal allowance to be the same, because that meant for people who died without much money, right, the spousal allowance, if the estate is smaller than spousal allowance, you know that no one else is getting anything.
But the small estate limit has risen over time. It’s now $100,000. So it’s possible you have a small estate that isn’t taken up entirely by the spousal allowance and goes to other people. That could be creditors, that could be other […] distributees. But it’s kind of interesting that those numbers used to be the same, which kind of made sense. And now they’re a little different. So you’ve got a couple more different types of scenarios.
And the last point I’ll make on the topic of the spousal allowance is, like I said, it gets paid first before anything, before any creditors. So sometimes you’ll see it work with what’s called the summary closing or the summary distribution provisions, which are somewhere else, I think they’re, 29-1-8 or something, 8-3. I’ll try to put the link in the text version of this post.
And that says, if you discover that there aren’t assets to satisfy all claims, or if you discover that there’s no money there, you can basically close the estate immediately, distribute to who it goes to, file a report with the court saying, look, you know, here’s the money.
So that could come up in a scenario where you think there’s an asset in the estate that’s not, or you don’t know what’s out there. You open an estate and then you discover later, okay, no, the spousal allowance will be all of it, or the spousal allowance plus, you know, a priority credit or claim, whatever the case may be. So that’s kind of how those interact.
But it’s just an important . . . the spousal allowance is an important provision in the law. It’s $25,000 right now, you know, as of whatever, December 2025. And that’ll be something we talk about if you come to me to do a probate administration. Obviously, the more planning you do in advance, the less the spousal allowance matters because your estate plan will probably work around it or, you know, do other things so you’re not necessarily in probate.
But if you are doing a probate administration, it’s a topic to discuss, and we will. So that was general information. If you need help with your case or you want specific legal advice, you’ve got to call me. My phone number is right at the end screen. You’re on my website. So I would love to talk to you. Thanks for watching today, and bye for now.
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Good morning, folks. It’s Andy Stautz with Stautz Law, and I am back today with a talk about an Indiana probate topic. This one’s very Indiana-specific, and it’s about venue for a probate estate.
Now, this probably isn’t something a lot of my clients are necessarily thinking about to begin with. But I think it’s important from a legal perspective and it’s kind of an interesting side note.
Probate Code Venue Provision: Domicile of Decedent
So the Indiana Probate Code has a venue provision. Venue is just where are we going to do this, right? Where are we going to have our probate estate?
Indiana Code 29-1-7-1 is a venue provision and it says venue for a probate is the home county of the person who died. So the decedent, that’s the person who died, their domicile. Okay, that makes sense, right?
Especially because this law is really old. So like back in the 19th century, you know, Farmer Bob dies, like, yeah, you go to the county courthouse where Farmer Bob’s farm is. That’s the best place to probate his estate. So that the venue provision in the probate code says, home county. Easy enough.
Probate in a Different County?
Sometimes though, it might be convenient for the heirs and beneficiaries or the lawyer or who knows, who knows why. There might be reasons to prefer a different venue than the county of the decedent’s domicile.
And the nice thing is, there’s a trial rule that lets you do that.
Indiana Trial Rule 75, “Venue,” says, you know, Part A, 75(A):,venue lies in any of these places. And it gives you a list of kind of like things to consider. And some of those are, you know, the convenience of the people involved, you know, being close to the spot, if that matters.
And it’s interesting because, okay, now you’ve got two venue statutes. Where do you… which governs? Well, Trial Rule 75(D) says this rule, the permissive venue rule, 75(A), overrides any other venue statute out there. So I think the correct view on this now is you can file a probate estate in any county in Indiana for an Indiana decedent.
Every Indiana court has jurisdiction, has general jurisdiction over, you know, everybody in the state. So you’ve got jurisdiction [and] you’ve got venue.
Choosing where to Open Probate Estate
So really probate venue becomes a question of where do you want it to be? And in the vast majority of cases, that is still going to be the decedent’s county of domicile. Um, but, but you know, if, If there’s an outlying county, the decedent lived far away and all of his or her surviving family members are in a different county. Maybe you file where the survivors are… or, you know, any number of other reasons. You’ve got that flexibility now.
So that’s kind of an overview of what the rule is, what you’re allowed to do. And it’s going to ultimately be a case-by-case determination. So, if you’re my client, I’m going to talk to you about, okay, what county should this be in? It’s definitely something to talk to counsel about because different courts in the state are different. And if you’re going to be going there for petitions, for hearings, you know, you want it to be the best place.
So it’s one more thing to think about as you’re considering how your state administration is going to go. I hope that information has been useful.
I help with probate estates throughout Indiana, though predominantly here in central Indiana, Marion County, Johnson County, Shelby County, Montgomery County, you know, just kind of this area and familiar with all of those courts and If you’ve got a case in one of them or you think you might need one, my contact information is here. So give me a call and we can talk about your specific case. Hope the general information has been useful and that’s all for today. Bye now.
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