Stautz Law

Tag: Probate

  • 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 Prove a Will (In Indiana)

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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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  • Houses and Estate Income Taxes

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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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  • What Happens to the Mortgage when Someone Dies?

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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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  • Spousal Allowance in Indiana Probate

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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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  • Choice of Venue for Indiana Probate

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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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  • Probate Administration: The Estate Bank Account

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    Good morning. It’s Andy Stautz at Stautz Law, and I am back today for another talk about a probate and estate administration topic. Today’s topic is the estate bank account.  

    When Do You Need an Estate Bank Account?

    Now, this is one of the things that a personal representative, (also called an executor, if you’re more familiar with that term), needs to do right at the beginning of an estate administration. So, you know, you petition the court to open an estate for the person who’s died. If the court approves that petition, they’ll grant it, they’ll issue the letters of administration, congratulations, now you’ve got a personal representative with an open estate, and the personal representative has these letters of administration. And that means it’s time to gather estate property.  

    Well, where do you put it once you have it?  

    And the answer is you have an estate bank account, which is separate from the personal representative’s personal accounts and separate from the decedent’s bank accounts, right?  

    The Estate as a Separate Entity

    This bank account is going to be just for the estate itself, which is like a separate entity. It’s like its own company for the duration of the estate administration. So you need a separate account so that you can keep track of what comes in and what goes out and so that the accounting can be separate so that you can show to the other beneficiaries, to the court if necessary, how the personal representative has handled the estate property.  

    I always give my personal representative clients an instruction sheet to take to the bank when they go to open this estate bank account. And probably the most important two items are, one, it’s a separate account. I keep harping on this, but that’s because it matters. 

    EINs for Estates

    We want an account that’s just for the estate. And to do that, the estate needs an identity, right? It’s not the personal representative, it’s not the decedent, so you have to get your own ID number. And that is an employer identification number, an EIN, which is obviously usually for companies, usually for businesses, but it’s the same type of ID number that the IRS federal tax authority uses for estates. So the personal representative has to go apply for an EIN for the estate, and then they’ll take that EIN to the bank to show that the estate is a separate entity that can have its own account.  

    So I provide instructions to my clients on how to request an EIN. It’s really easy and it’s online these days. Sometimes I apply for an EIN for the estate on the personal representative’s behalf, but you need a separate authorization sheet, right? Not just anyone can go around willy-nilly applying for other people for these tax IDs.  

    Conclusion: Putting It All Together

    But that’s kind of the process: Right at the start, your estate, you’re spinning it up, you’re kind of starting administration. You need a place to put the estate property as you gather it, so the personal representative gets an EIN, goes to the bank, opens an estate bank account, and then that lasts for the duration of the administration.  

    And like I said, I give all my clients an instruction sheet on this because, you know, it’s kind of the first item of business.  

    So that’s all I’ve got for today on this topic. I think I’ll probably talk more about accountings and inventories later. This was just kind of a what you need to know about this particular step in Indiana state administration. So you’re on my website, obviously. The end card will have my contact information. Give me a call or e-mail me if you’ve got questions about this or you want to work with me on this or any other matter. Hope this informational talk’s been useful and bye for now. 

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  • Fixing Bad Wills

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    Good morning, folks. It’s attorney Andy Stautz at Stautz Law. I do Indiana probate and estate planning, and today we’re talking about fixing DIY wills or bad wills.  

    So our last video, which I just did, you know, 10 minutes ago, I was talking about how DIY wills go bad. You know, I said, Look, I’ve been seeing a bunch of probate estates where the family says, you know, here I’ve got this will and it’s a disaster, right? Like it’s not signed properly, it’s invalid, whatever.  

    Can you fix it?  

    Ounce of Prevention Worth a Pound of Cure

    So, start with the start. The best way to fix a DIY will or a bad will is to, while the person is alive, go get a new one written, by a professional, right? It’s way easier to fix problems before you die.  

    But let’s assume it’s too late, okay? The person passed, all that’s left is this handwritten will or bad will, you know, improperly executed will.  

    What can we do?

    Possible Solution #1: Family Settlement Agreement

    The easiest fix is a is a family settlement agreement, which is kind of a nickname for a statutory procedure in the probate code. So that’s Title 29, and then Section 9, I think. I’ll cite it in the transcript. [Statute is here: Indiana Code 29-1-9]

    And basically it says, You’re allowed to come to an agreement to compromise a controversy about the effect of a will. So you can use a settlement agreement that’s to say, we, the family members, we, the heirs, agree to treat this will as valid.

    Now, the problem with that is, or, you know, that’s great if you can do it, but it requires the consent of everybody involved. So everybody who would get something under no will and everyone who would get something under the new will, right? So if you’ve got a will leaving everything to Jerry, but the intestate heir is Sam, then, you know, Jerry can’t say, I agree to treat the will as valid, right? Sam and Jerry have to agree. Everybody’s got to agree. And that requires finding everybody, you know, making sure they’re okay with it.  

    So sometimes it’s possible, but sometimes it’s just not.  

    Possible Solution #2: Supervised Administration

    Another fix, if you can’t find everybody or everybody doesn’t agree, is to go for a supervised administration and then get a court order directing, you know, directing administration. So you can petition the court for a determination [These are in I.C. 29-1-6-5 and I.C. 29-1-6-6, for example] and say, you know, are we following this? Is this valid? You know, what should we do? It might not come out like you want, but that way at least you’ve got, you know, nobody gets in trouble for relying on a court order, right? Like it’s a great way to solve that.  

    Possible Solution #3: Disclaimers and Assignments

    And then finally, you know, you can do something similar to a family settlement agreement through disclaimers or assignments of interest, which are a little bit, are subtly different from each other, but both have the effect of someone giving up, right, their rights, either to an intestate share or under a will.  

    So sometimes you can use those to kind of either fix the will or achieve the same effect as the will intended, putative will intended. So, you know, if Oh, let’s say the intestate heirs are Sam and Jerry again, and the will leaves everything to Jerry. The invalid will leaves everything to Jerry. Well, if Sam says, you know, I give up my share, then Jerry gets everything. You know, that’s basically the same effect as the will by a roundabout way. But in all of these cases, right, we’re doing problem solving after the fact. We’re trying to make up in probate for what we could have done with, with proper planning ahead of time.  

    Recommendation: Do it Right and Avoid Problems

    Now I do both estate planning ahead of time, making the wills and probate after the fact. So for me personally, as a lawyer for my business, it doesn’t matter what you do, but I’m here to tell you doing the will right up front, you know, saves a lot of time and trouble. I don’t mind solving the problems later and it’s kind of fun. But it takes more work. It’s more expense to you and the other heirs.  

    So those are some ideas. There’s no legal advice here. That’s just kind of talking about what I’ve seen. If you need help with a problem, a probate problem, or fixing a will, call me. My contact information is on the end screen and you’re on my website. So take a look around and I look forward to working with you. Thanks. Bye.

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  • How DIY Wills Go Wrong

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    Introduction: Writing Your Own Will?

    Good morning, folks. This is Andy Stautz at Stautz Law. I’m an Indiana estate planning and probate attorney, and today I am here to talk about DIY wills and how they fail.  

    And this talk is prompted by my recent experience. I’ve had several estates in the past few weeks where there have been complications, expensive and unforeseen complications arising from a decedent who left a DIY will, right?  

    So these are people who thought, oh yeah, well, you know, I can write a will, I can do it myself, okay? And they fail in all sorts of different ways, but there are a few that are the most common.  

    Can You DIY a Will?

    So let’s start at the start. Can you write your own will? Yes, you can. Obviously, and there are now lots of websites online where you can download a will. It’s an option, it’s out there. But there are some traps. And I think you should, it’s worth paying a professional to do for you to make sure you don’t fall into one of these traps.  

    Problem #1: No Witnesses!

    So what am I seeing? What do I see? Number one, most obvious is the will was never witnessed. Okay? So if you just write on a piece of paper, you know, the house goes to Jerry and you sign it, that’s great. You know, hopefully your heirs will honor that. But they don’t have to. It’s not a valid legal document. We can’t present it to a court and say, this is his last will and testament because Indiana law requires two witnesses. [That statute is I.C. 29-1-5-3]

    Problem #2: Interested Witnesses

    Which brings me to the second obvious problem. A lot of times it’ll be, I leave my house to Jerry, signed, you know, Bob and Jerry. And it’s like, you can’t do that either, okay? A witness who’s interested, you know, the guy who gets stuff under the will can’t be a witness to that bequest. Okay, it doesn’t necessarily invalidate the whole will, but Indiana law makes an interested witness invalid as to the bequest, you know, as to the gift he gets. So giving the house to Jerry and signing by Jerry, that’s no good. [That statute is Ind. Code 29-1-5-2(c)]

    What are some other common problems? Those are probably the two most common.

    Problem #3: Vagueness, Ambiguity

    Vagueness is another common problem I see. It’ll say, you I leave my car to Jim and it’s, you know, maybe that writing is dated years ago. It’s like, okay, well, you know, which car? What are we doing here? And it’s a bigger problem for real property. I mean, a car, no big deal. But, you know, land records are more formal. The recorder has to accept the evidence that the transfer happens. So that’s another problem.  

    Problem #4: No Self-Proving Affidavit or Consent to Unsupervised Administration

    Finally, are things that aren’t necessarily like fatal to the will, but are annoying to the heirs who have to administer it. And probably the most annoying is, you know, no self-proving affidavit. So if you just sign the will with two witnesses, it’s valid. But to get it admitted to probate, one of the witnesses, one or more of the witnesses has to come forward and swear that it’s actually the will.  

    You know, you can avoid that — and all my wills, all professional wills avoid that by adding a self-proving affidavit to the end, which is just some magic words. But what it does is it excuses you from having to bring the witness back at time of probate. So just a little trick.  

    And finally, I’ve never seen a DIY will with a consent to unsupervised administration. But if you’ve got cooperative heirs, that little consent saves you like thousands of dollars in probate. Because it just, it lets you, it lets you use the unsupervised procedure, which is so much faster, so much easier. than supervised probate.  

    Conclusion: Save Time and Money, Do It Right the First Time

    So those are some common problems. There are more bizarre ones, but by far the most common is failing to properly execute it. And then the rest are subsidiary problems. So I think you should hire a professional if you’re thinking about getting a will done. It’s not that expensive. It’ll save you lots of money in the long run.  

    You know, I don’t care, I suppose, because, a messy probate is more expensive and that’s usually in legal fees. So it’s for your own good. Get a pro to look at it beforehand and save yourself trouble later. But that was just a quick talk about how these DIY wills go wrong and hopefully give you something to think about. Thanks. 

    Bye. 

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  • What to Expect as Personal Representative

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    Good morning, folks. It’s Andy Stautz at Stautz Law. Today’s talk is really instructional, and this is going to be shared, I think, with my clients and prospective clients as kind of a how-to, and that is: what to expect when you’re named personal representative.  

    So If you’re watching this video, you’re probably either thinking about hiring me or you’ve just hired me to represent you as personal representative in a probate estate.  

    So what’s going to happen? Like how is this representation going to go?  

    Three Stages of Probate

    Well, there are basically 3 steps in administering a probate estate.

    The first step is kind of the initial filings, right? It’s getting everything around and petitioning the court to open the probate estate. That’s step one.  

    Step two is administering the estate. And that’s all the things we need to do to get the property passed on to the right people in the right way.  

    Step three is, you know, closing the estate in a final accounting distribution.  

    So in general, big picture, the personal representative is in charge of gathering the estate property that’s out there, administering it for the benefit of creditors and beneficiaries, and then providing a final accounting and distributing it.  

    1. Opening the Estate

    So the first steps, the busiest time is going to be right off the bat. I’m going to ask you for a bunch of documents, a death certificate is probably the single most important one, the will or other estate planning documents, if there were any, the names and contact information of you and all the other heirs and beneficiaries. Okay? Because we need to know, we need to know what we’re dealing with and we need to be able to tell the court, you know, here’s what’s involved. Here’s who you are. Here’s who’s concerned in this estate. And so those documents really help establish that and prepare those filings.  

    And you’ll need to sign a bunch of stuff, right? I routinely use e-signatures. You can come into the office too. But you need to say, yeah, I promise, judge, that, you know, I am who I say I am. I have an interest in this estate. These are the people, you know, you’re making a promise to do this the right way. And the court needs to see that.  

    2. Administering the Estate

    So that’s kind of the first step is opening the estate. If the court approves it, which, we do it right, they do, you need to begin administration.  

    This is step 2, the second big chunk. And this is where you need to do things like opening an estate bank account, right? Notifying, figuring out who might, have a creditor claim against the decedent, usually this is like utility bills, maybe an unpaid credit card, a mortgage company, find who they are.  

    Because the step 2 is really tell everybody concerned, hey, we’re administering this estate, make an estate bank account because it’s a separate entity, right? We’re putting all of the decedent’s property into this pot, the estate. And, you know, creditors can ask to have some, the beneficiaries ultimately, you know, get their shares. So that’s kind of step two. And step two takes at least three months because that’s the statute waiting period, right? The people who might have a claim get three months to come forward, which is, you know, pretty fair, right? They don’t need to be Johnny on the spot, but they also can’t just like wait forever. So the three months is like, okay, that’s what we need to do.  

    And administration sometimes is really easy. You know, if no creditors come forward, you know, if the property’s mostly just like a bank account and maybe a house without a mortgage, maybe you’re not really doing anything for three months. So it can be quiet or it could be really busy.  

    if there are lots of properties, there’s a business you have to keep running, if there’s a mortgage you have to keep paying, it can be busy.  

    3. Closing the Estate

    Finally, step three, which comes, you know, at the end of that three-month waiting period or later if there’s more work to be done. Step 3 is you know, closing out accounting and distributing the estate. So this is where you’re going to, you know, tally up the accounts, say, okay, which creditors are we paying? How much? You know, you pay expenses of administration. So my legal fees, court fees, if you pay, if you have to pay a realtor to sell a house, right? And then come creditor claims. So funeral expenses, utilities, the mortgage. So you pay all of those first, kind of off the top.  

    And then you say, okay, here’s what’s left. And it goes to, you know, equally three ways to the kids or, you know, to the beneficiaries designated in the will, you know, as the will says. And so that final accounting, we need to make sure we get it right. It’s a little bit of a process.  

    And then there’s a final statement you file with the court saying, here we did it. And in an unsupervised estate, that closes the estate on its own. In A supervised estate, you need a court approval, you know, saying, okay, you did it right. And then we close out and we’re done.  

    So that’s the big picture. When you’re the personal representative, you’re going through these three stages. You’re you know, getting the information around to open an estate. We’re doing those initial filings. We’re getting, you know, we’re getting the court permission to act. Stage two, we’re gathering estate property. We’re figuring out what needs to be paid and what needs to be done. Stage three, we are settling up. We are paying valid claims, paying expenses, and finally distributing the estate.  

    Timeline for a Simple Indiana Probate Estate

    And the whole process start to finish, right? we can get an estate filed in the first week, couple days, and then a week to issue letters and then three months of administration and then maybe a few weeks to finalize and close.  

    Conclusion

    So that’s the overview. That’s, kind of what to expect here. And so if you’re my client, I’m going to refer you to this video just to kind of just kind of have a roadmap in your head. And obviously, you know, there’s lots of guidance along the way. And the reason you hire me as your probate attorney is because, yeah, I’m there to answer questions for you and to walk you through, the details of those stages. This was an overview.  

    I hope it was instructional and reassuring. You know, we’ve done this before. It’s a very logical process once you understand it. So nothing to worry about. I look forward to working with you. And as always, my contact information is in the end card. It’s all over my website and you’ve got it already if you’re my client. Thanks, bye.

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