Stautz Law

Tag: Small Estate

  • When You Don’t Need a Probate Lawyer

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

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

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

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

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

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

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

    Trust Administration

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

    DIY Indiana Small Estates

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

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

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

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

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

    Conclusion

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

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

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  • All About Indiana Small Estate Affidavits

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    Good morning. It’s Andy Stautz at Stautz Law. I am back for another talk about probate administration, specifically Indiana probate administration. Today’s topic is the small estate affidavit.  

    What is a “Small Estate Affidavit”?

    So the small estate affidavit is a tool that you can use to collect the property of a decedent (That is, that is someone who has died: a decedent.) in certain circumstances, without having to go to a court for probate, without having to open a formal estate, without having to hire a lawyer, necessarily.  

    This is a really handy thing. You need to know about it because it’s often the right choice. For people who don’t have very much property when they die. So if client calls and they say oh. I’ve… You know, my dad died. My mom died. Oh. He didn’t have anything. It’s just $2000 in a bank account or, you know, it’s just his last Social Security check that he hadn’t deposited yet — you know whatever.  

    Indiana Law of Small Estates

    Where there’s not a lot of property, it doesn’t make sense to hire a lawyer and open an estate. Indiana has given us this nice law. It’s in the probate code, 29-1-8. Has all the rules on what the smallest estate affidavit is; when they use it.  

    What is the Indiana Small Estate Limit?

    The basic rule is the total value of the estate has to be less than $100,000. So that… I’ve referred to that in other videos, it’s an important number because that’s the “small estate limit.” For less than $100,000 in total property, you can use the affidavit procedure; if it’s above that, you have to open a probate estate.  

    How to Use the Small Estate Affidavit

    So how … then the next question, how is the small state affidavit easier? What is it?  

    Well, it’s just a paper. It’s just a document you fill out and you know, so and so, this is their name, birthday, date of death. You know, here’s who I am. I’m the son. I’m the daughter. Whatever.  

    You fill it out and then you take it to the bank and you say. “Give me give me the decedent’s bank account.” And. Or anyone else who’s holding. Personal property. Of the decedent, although bank accounts are by far the most common.  

    Other Rules on Small Estates

    There are a couple of other little rules: you know, you have to wait 45 days. You have to swear that you’ll distribute the property to the right people. (Oftentimes, that’s just whoever is holding the affidavit, but sometimes there are other heirs and you basically promise to divide it fairly.)  

    Can You Use a Small Estate Affidavit for Real Estate?

    And furthermore, and this is a big limitation, it applies by its terms to personal property. So, so things, money, moveable things, not real property. So not a house, not an apartment or condo, even if it’s less than $100,000. 

    The small estate affidavit is just to get people to hand you the personal property. Real property goes by its own special rules.  

    So that’s basically the overview. If you’re below $100,000, you’ve got personal property you need to gather. You should get this form, fill it out, take it to the people who are holding the property and get them to deliver it.  

    And it’s called “dispensing with administration” or small estate administration because you don’t need to go to court. For anything.  

    Small Estate Affidavit Forms and Resources

    If you think this is your situation, you know you look online. Indiana Legal Help has a form. If you just Google Indiana Small Estate affidavit, you’ll find a form.  

    You know you can hire me to put it together for you. And you know that that helps make sure it’s done right, but. It’s DIYable if you’re diligent. 

    And what else should I say? I suppose the other thing is the small state affidavit is also used in conjunction with the Trust administration. A lot of times. So if I’m doing a probate avoidance plan. And a person puts all their assets in a revocable trust, their probate assets–the things that aren’t in the trust–are below the small estate limit, so we can use the small estate affidavit just to kind of clean up whatever is left that’s not in the trust.  

    But that’s a deeper topic, so that’s the basics. Like I said, you could do it yourself. You can give me a call and do it for you, but you should know that it exists. And like I said, the code section is 29-1-8-1. If you want to read the law. Thanks and see you next time. Bye! 

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