Stautz Law

Tag: Heir

  • 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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