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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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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Good morning, folks. It’s Andy Stautz at Stautz Law. I am back today for another talk about Indiana estate planning. Today’s topic is why new parents need a will. And this is a topic near and dear to my heart, because a few weeks ago my wife and I welcomed our first child.
So we’ve recently redone our estate planning and lots of our friends are in similar spots. You know you’ve got kids, maybe new babies. Or maybe you’ve just been meaning to do it for a while. And it’s like. OK. Why is this on your To Do List?
So I’m going to go through the what I think are the the biggest, most salient reasons. There are probably others. But I’m thoroughly persuaded all new parents need a will. Why?
Reason #1: Avoid Leaving Property to a Baby
Reason #1 as soon as you have a baby. Your baby is now a 50% intestate heir if you die. That means if you die without a will the day after your baby is born, your baby is entitled to half of your property, not your spouse. Well, your spouse gets half, but your spouse doesn’t get everything. Is what I mean.
A lot of people assume that their spouse is going to get everything. It’s not true. I made a video about that like a few weeks ago. So number one reason is to override the rules that you would get if you didn’t have a will.
And the reason you want to override those rules is because it’s really inconvenient for a child to get a bunch of property. I mean you need to establish a guardianship for that property. And you know, if one spouse is still living, it’s not necessarily a huge deal, but it’s probably not what you want, not what you want to be dealing with. You know your spouse is going to be having the worst time in their life, right? You don’t want to be there trying to like set up that stuff.
So avoiding intestate succession, avoiding guardianship.
It Doesn’t Need to Be Complicated
You know you can put a testamentary trust in your will, so you don’t need to do a full, expensive trust planning right now. You just need a back stop. Like OK worst case scenario. You know, we’ve got this will that says where the property goes and in the case of both spouses dying, you can set up a trust like in the wills themselves, an emergency last minute, here’s what it does. Again avoiding guardianship, putting some structure around the inheritance so that you’re not leaving your child with a mess or a lump sum inheritance or whatever.
Designating a Guardian for your Child
And the other reason also related to Guardianships is. You should use the chance in your will to designate a “guardian of the person.” So who’s going to raise your child? You know, that’s the remaining spouse, but in the event of a common disaster you want to. If you’ve got, if you’ve got an opinion on who raises your kid, you probably do. You know, you should put it down there
So. Like I said, it doesn’t need to be complicated. I’m not saying every new parent needs to like. Come up with some complex plan. You know, do a trust administration, any of this. Just having a will to override the “half to kids” intestate succession half to spouse, half the kids just like. Having a will that says “all to my spouse.” It’s just a really important backup plan.
Is It Worth It? Expected Value of Having a Will
And you know, we can, we can price out the expected value of that. You could say, OK, well, what’s the risk one of us dies while our children are minors. You know, whatever you think that risk is, if you’re an actuary, you can figure it out. What’s the cost? If we mess it up, we don’t have a will. OK, what does it will cost, you know, and I think it’s like insurance, right? It’s a backstop. It’s a worst case scenario plan. But the expected value is positive. You would be really glad you had it if you need it and hopefully you don’t.
Building Good Habits: Beat the Procrastination
And lastly is you know it’s a start, right? For lots of people life events are triggers to start doing estate planning which they’re going to need to do at some point. And so it’s kind of good to have something down that you can revise later versus, you know, being older, having more complicated property and family affairs, trying to do everything for the first time. You know, you’re a grown up. Time to have an estate plan. It’ll save your family and loved ones legal trouble and emotional trouble.
Conclusion
So that’s the pitch. Get it done. You know. Hire an attorney or or do it yourself, get something done. I think hiring a professional is worth it, but you know, cash is tight. That’s up to you. OK, that’s what I’ve got today. I think I’ll do a follow up on a “to do list” that includes more than just the will, because there are a couple of other things you want to do to make sure your property affairs are in order. That’s all for today. Thanks for watching.
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Hi folks, it’s Andy Stautz at Stautz Law. I’m back today with another talk about Indiana estate planning. And today is going to be a quick one, but a very important talk. I have seen lately on social media, you know, Reddit, Nextdoor, kind of these local social platforms, people talking about Indiana intestate succession rules and getting it wrong.
“It All Goes to Spouse?” No! Think Again!
So you see things like “if I die without a will what happens? What happens to my stuff? Do I need a will if I’m just leaving everything to my spouse?”
And there is apparently a persistent, pervasive belief out there that if you die your spouse gets everything by default. That is not the law in Indiana. OK? That’s wrong. It’s not true that your spouse gets everything when you die by default. If you have kids, your kids get 50% of your intestate estate, so spouse gets half and kids get half.
That’s a very different outcome, and most people don’t really want that right?
How to Make It So Everything DOES Go to Spouse
Most people who are married with kids want their spouse to get everything first. And then the surviving spouse gets to decide how and when it goes to kids.
So if you want it to work like that, you need to make a will or a trust. You need to do some estate planning, you cannot rely on the default if what you want is everything to go to your spouse.
Reasons to Plan Ahead
We can talk about why you don’t want half going to your kids right away, but I think most people understand that intuitively, right? You do not want minor children to come into large sums of money because then you need to manage those assets for their benefit until they’re 18 and then when they turn 18, they have access to the money. Same thing with adult children. You know, maybe you don’t want your adult children getting an inheritance right away when you’re still trying to provide for your surviving spouse.
And there’s potential conflict there, right? I’ve had a few cases where families have agreed to put inheritances in trust to kind of restrict access, after the fact, when there wasn’t good enough estate planning, but that depends on everybody getting along and depends on the children kind of signing away their right to immediate access to the money.
So you know it’s a problem we can solve sometimes, but it adds a risk of conflict. So you want to avoid that, right? If your plan is everything to my spouse, that’s a great plan, but you need to make documents to do it. You cannot rely on the default rule, because the default rule is not all to my spouse.
And I’ll certainly add a reference to the intestate law. I.C. 29-1-2-1 So you can see what the law actually is.
I don’t know where this… I don’t know where this belief came from, but it’s out there.
So I hope I’ve set things straight and that’s all for today. So give me a call or book your appointment online. We can talk about your estate planning. I’d love to write your will or trust and get you set up correctly. All right. Thanks for watching. Bye now.
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Good morning, folks. It’s Andy Stautz at Stautz Law. Today we’re talking about estate planning. And the question is, do you need a will when the intestate rules would accomplish the same disposition?
Wills vs. Intestacy in General
So let’s break that down a little. Intestacy is when you don’t have a will. The intestate rules, then, control who gets your property. And the intestate rules are, as we’ve said before, the Indiana State Legislature’s best guess at what people want to happen. So you know. Yeah, your property goes to your relatives, to your spouse, if you have one; to your children, if you have any. If you don’t have children or a spouse, your grandchildren. If you don’t have any descendants or spouse, you know your parents, then your nieces and nephews. Kind of increasingly distant relatives.
Obviously a will if you have one overrides the intestacy rules, so you can leave, you can use a will to leave it to anyone, not just your family.
What if Intestate Disposition is Fine?
The situation comes up sometimes though, where someone wants … someone has, you know, just a spouse. No parents, no kids. Do they need a will to leave everything to their spouse? because the intestate rules would leave everything to their spouse anyway?
Or, you know, they just have adult children, no spouse, no parents. Everything will go to their adult children. Do they need a will to to do that?
Considerations Before Planning Not to Plan
This is one of those areas where the actual solution is legal advice. It depends on your situation.
1. Possible Family Changes
But there are some things to think about just generally and one would be: how sure are you that your family situation is going to stay the same as the intestate situation? So you know, if you got remarried, if you had another kid… If you forgot about someone … you adopted a stepchild and don’t remember that you did it, and now you know… Whatever.
So with intestacy, you’re just kind of at the mercy of what the rules are and what the family is when you happen to die. With the will, you lock it down. You say, OK, this is who it’s going to. So that’s worth something.
2. Powers to make administration easier
Also your will can give powers to your personal representative to make administration easier. And that might be worth it to you. You know, we’ve talked before about how you get unsupervised administration and why you might want to do that. Well, you can do it if you’ve got the consent of all intestate heirs. But you know, if there are many heirs or if they don’t quite get along, you know, the will can say “I authorize my personal representative to do it unsupervised.” So you just kind of remove that question, remove that obstacle and that saves you money on the back end and it saves your heirs money. I suppose you know, maybe you don’t care at that point, but it makes things easier.
3. Forestalling conflict and uncertainty
And then the third thing is closely related to that… in addition to locking down your disposition, giving your personal representatives powers to make his or her life easier, you also reduce the risk of conflict. With intestacy, you don’t know who’s going to come out of the woodwork. There’s always a little bit of doubt, you know. Did we find everybody? And you know. OK, what are the shares? how are we going to administer it?
With a will you say “Nope. Here’s the universe. These are my beneficiaries” and you kind of give more certainty to the whole administration. There’s no wondering. “Oh, is there a will out there we forgot? Is there an heir out there we forgot? Is someone going to come up later and challenge this? You know, having the will, even if the disposition is the same, kind of forestalls all that conflict and says. Nope. Here it is.
So that’s kind of three reasons. I’ve just given you for why you might still want a will. Even if you think intestacy is going to work correctly for you. … It’s probably worth doing. Again. You know, specific to your situation, I can’t give you legal advice in a general talk like this.
But these are the kinds of things I talk about with my clients at our planning meetings and usually the planning pays for itself. If you, you know, if you forestall even a small fight or you make things a little easier on your personal representative. It’s going to save in the long run.
I hope that’s given you some idea and what’s helpful. You can call me or book your appointment online and I look forward to talking to you about this or any other estate planning topic. Thanks and bye for now.
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Good morning, folks. It’s Andy Stautz at Stautz Law. I’m back for another talk about an estate administration topic or probate topic. Today. We’re talking about spreading the will of record, which is also called probate of will without administration.
So what? What is this? What are we talking about here? This comes up when you have a small estate usually.
Different Routes through Probate
So in the Indiana probate code, you know you’ve got full formal supervised administration. You’ve got unsupervised administration if you need to do some court involvement, but not quite as much. And then you’ve got “dispensing with administration,” which means you don’t do any administration at all.
And that happens when the estate property is below the threshold and right now that’s at $100,000. So if you’ve got a small estate. You don’t need to go through all the formal probate processes.
Wills and Small Estate Administration
But you know, if there’s a will. You’ve got basically three years to probate the will. Now there are tons of exceptions to that, but that’s another topic.
So if the decedent left a will but also has a small estate… you want to give effect to the will, but you don’t want to go through all the administration. That’s what spreading the will of record is for. That’s “probate of will without administration.”
What does spreading the will of record look like?
Basically you take the will to the court and you say. “Look. Here this person left a will. We don’t need to do anything with it because we’re. Doing the small estate. Procedure which is really informal. … but put it on the books. Recognize that it’s valid”
That way we’ve got it later in case anything comes up and it’s kind of, you know, it’s just a precaution … Just a way of making sure it’s on the books before the times up. That way, if there’s any question about it, you know it’s there. You’re not trying to dig for it years and years later. It just kind of answers the question. Good best practices.
And it’s really easy. It’s basically just a petition to the court. You know: “this person died. Here’s their will. We think it’s valid because it’s witnessed and there’s a self proving clause.”
And the court looks at it and says “Yep, OK. Go for it.” And then you just carry on doing whatever the small estate administration is. In that case, no further action needed.
So that’s just kind of one piece of the total small estate procedure which I will talk about in a different video because it’s lengthy.
When Do You Need Probate Without Administration?
But I think the one other important thing I need to note here is this. The small estate procedure applies to “probate assets,” so it doesn’t mean that the person was flat broke. It means the person was either flat broke or did some good estate planning like maybe a revocable trust or beneficiary designations or something such that there aren’t probate assets. Doesn’t mean there are not any assets at all.
So, spreading will of records really common for a pour-over will that you’re using in conjunction with a revocable trust, right? Because everything’s in the trust. The probate assets are below the small estate limit. You’ve got a will just to catch anything left over. So you spread it of record. That’s a really common use case.
You know the other would be even with less advanced planning, maybe you’ve got a transfer of death deed for the house. And a couple of retirement accounts with beneficiary designations again. You know, it’s not very fancy planning, but the probate assets are minimal, so you’ve got a will as a backup, you probate it without administration, you spread it of record, but everything else is going outside of probate.
So that’s kind of the procedure. That’s how it works and it’s easy to do and like I said, it’s common in certain scenarios: a true small estate; an estate that’s small because everything’s in a trust; and an estate that’s small because everything’s handled with transfer on death designations.
But easy to do if you need help with it, call me or book your appointment online. And like I said, this very routine thing to do and hope this talk has helped you understand what what you’re looking. Thanks and bye for now.
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Hi folks, it’s Andy Stautz at Stautz Law. I’m back with another talk. I’m recording this one just after the one I did before on personal representative bonds. Today’s a very closely related topic, and that’s Notices of Administration. And these are things that go together right at the start of a probate estate.
What is a Notice of Administration?
So you petition the court, you say “please, we need to open an estate to administer, you know, the decedent’s affairs.” You make that petition. The court will order the appointment of a personal representative (that’s going to be the person in charge) and then once the court is satisfied and you’ve posted a bond if you need one (see the other video), the Court will issue letters of administration or letters testamentary, which is the document that gives the personal representative powers to act. And the Court will also issue some “notices of administration.”
That’s what we’re talking about today.
And these [notices of administration] come in two flavors.
There is a published notice of administration that just goes to the entire world. It’s basically, you know. People we don’t know about. Anyone who’s interested can see this.
There’s another notice of administration that goes to distributees – beneficiaries – known creditors. So that’s kind of the people we do know about.
Why Do You Have to Publish the Notice of Administration?
And both notices. Have the same content, they basically say. OK, this court, you know, whatever court it is, Marion County, has opened administration of the decedent’s estate, case number. Blah blah blah.
And it warns whoever receives the notice, you know, here’s how the estate administration’s going to go. And if you have any claims against the estate, you need to bring them in the statutory time period. So if you want the person to pay debts, you’ve got to let us know now so that the personal representative can deal with it and allow or disallow the claims.
(We’ll talk about how creditor claims are handled later) but the purpose of the notice of administration to distributees is saying, “hey, people we know about, this is what we’re doing,” and the published version is, “hey, people we don’t know about, here’s what we’re doing.”
How Does Publication Work? Who Sees It?
The published version gets published in a newspaper, usually. So like at the back of the Indiana Business Journal, right, the “court and commercial record” is what it’s called here in Marion County. Johnson County’s got its own business paper. At the back there are all these, like, little paragraphs. And that’s exactly what these notices of administration are, they say: this court, this case, here are the dates.
And you might say, wait a minute. I’ve never looked at those. Who looks at those?
And the answer is well, creditors do! Right? people, people have a job to, you know, look through it and say, aha that’s one of our utility customers or that’s one of my credit card customers. And so they will. They will see it. You won’t see it because you know you don’t care about estate administrations, but creditors do monitor it.
So that’s just one more step in starting administration. Your attorney, me if I’m your attorney, will take the notice that’s issued by the court and go to the correct newspaper and say “publish this please.” And pay the fee, which is reimbursable from the estate and it’s an expense of administration.
And the newspaper will say, great, we got it. We’re going to publish it. And then later, after it’s been published, you get a proof of publication. You take that to the court and you say “look, Court, we did publish it just like we were supposed to.”
So that’s about all on the publication side.
Notice of Administration to Known Creditors
The other people the notice goes to is “known creditors.” T e personal representative is supposed to look through the decedent’s affairs and say, OK, well, you know he didn’t pay his last utility bill. We got some hospital bills. You know, maybe we got some credit card.
So you need to make a list of those, and you send the notice directly to those creditors. You say, “OK guys, you know, we think that the decedent might have owed you money. You know, here’s your chance to speak up and say something.”
And it doesn’t even have to be… It doesn’t say certified mail or return receipt. It’s just, you know, send it. And that’s your obligation. And then after that, you’re supposed to report to the court and say “by the way, we notified these creditors.”
So that’s how that works. Notices are just to get the word out so that anybody who has claims can come forward because you kind of want to get everything out into the open so you can deal with it at once.
If you got any questions about that, you can always call me. Like I said, I handle lots of Indiana probates. I’d be happy to help you through yours. Thanks and bye for now.
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This blog post is one of my most-read pieces on the site. I’ve made a follow-up post explaining more about exceptions to the three-year rule, including when it doesn’t work!
Transcript
(Auto-Generated)
Hi, it’s Andy Stautz at Stautz Law. Today I’m talking about Indiana probate. And specifically time limits.
How to Probate a House Years Later
Here’s the scenario, OK. You’ve got someone and they have a house and it’s just sitting out there and they say, well, the house used to belong to Grandpa. But no one’s done anything anything about it.
And let’s say Grandpa passed five years ago.
What happens? You know, we’ve got basically abandoned property here. And this situation is more common than you would think. People say. Oh well like what happened to the house, it’s just out there.
OK, so the question is, is it too late for probate? You know, can we get the house passed along?
Indiana Rule: Probate Will Within Three Years
And the general rule in Indiana is you have to probate a will within three years of the death. That’s written into the code. It’s 29-1-7-15.1(g). There it is. I’ll link that portion of the code, but three years is the general time limit.
Why Have a Time Limit for Wills?
Because you don’t want people showing up with a will years and years down the line. Right, you need a cut off date. And that three-year cutoff date is “OK, No will in three years? There must not be a will.”
Right. It’s just kind of… just like a statute of limitations in any other law, at a certain point you just need to say bygones are bygones.
Exception: Probate of Will for Specific Property
Now. There’s an exception and this is what rescues a lot of these house issues. So in the very same section of the code that says “no will is valid past three years,” a little further down it says. “Except you can probate a will to prove title to a specific property.”
Using the Exception to Probate a Will for a House
It’s like, OK, well, a house is a specific property. Perfect. Boom. And I think that’s really what they’re contemplating is to say, OK, you know we didn’t do a probate before, but we do have a will. Here it is. Look, it says who the house goes to.
And that’s super useful. Because the will probably says something different than what the intestacy (you know, the “there is no will”) rules say.
Differences When Opening Late Probate
So if there is a will and there is property, you can open a probate. Just to deal with that one piece of property and the law says “treat it in every respect like a normal probate.” OK, but of course you’re past the creditor claims period, right? Because it’s been years. You know, notice… the notice statute says “shall” issue notice, but it’s like, OK, well, why? So it’s going to be a little different. The creditor claim is going to be different, but the basic idea is there’s a rescuing clause even after three years.
You can present a will for a specific purpose like that, and that could be really useful.
So if you need to do it, come talk to me. I’m happy to do it. It’s fun. And don’t despair. You know, the state doesn’t want abandoned houses everywhere, right? We want to get property to the right people. So call me if you’ve got questions. Hope that was a fun overview more next time. Bye for now.
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Hi folks, it’s Andy Stautz at Stautz law. We are back today with another topic, this time probate again. And today’s topic is: “how do you get unsupervised probate administration?”
Types of Probate: Supervised vs. Unsupervised
So to back up. Probate is the orderly administration of a a person’s affairs after they’ve died.
It comes in a couple different flavors. There’s supervised administration. Which is where you have to go to the probate court and ask permission before you do anything. “May we sell the house, please.” You know, “may we distribute this?” “May we pay this claim?” Supervised is very court-guided. Lots of time, more expensive, a total pain.
Unsupervised, by contrast, is… you know, you file the paperwork to get the probate estate open, the court says “OK, you’re good to go” and then you’re on your own until you basically say at the end, “Hey, Court, we’re done.” The court says “good job.”
So unsupervised is better. I mean, if there’s no conflict, we like to do it. So I like to be able to tell my clients. You know we’re going to, we’re going to try to do this unsupervised.
Getting Approved for Unsupervised Probate
The question is, how do you get unsupervised probate? Can anyone do it?
And the answer is no, not anybody. There’s a specific process.
Indiana’s Default is Supervised Probate
In Indiana, supervised probate is the default. It’s what you get unless you qualify for unsupervised. As kind of an exception, right? You need to show the court “Don’t worry, don’t worry, we’ll be able to handle this.”
Two Ways to Get Unsupervised Probate
So there’s a specific law, it’s in the Indiana Code 29-1-7.5-2. And it says, you know, conditions for unsupervised administration. There are two ways you can do it.
Planning for Unsupervised Administration
One, you can plan in advance. (And this is something I do on the estate planning side.) I always recommend that someone’s Will include a clause that says “I authorize unsupervised administration” because if you say that, then the court’s gonna go “OK, sure, y’know, they asked for it.” So that’s the easy way.
Consent to Unsupervised Administration
If you forget to do that, or you don’t have a will at all, you can still get unsupervised administration, but it’s a little harder. You need the consent of everybody concerned. Basically.
So for me as a probate attorney, I prepare these little documents that go out. They’re mailers, basically, and I have to send them to each person: you know, each potential heir, and it says “my name is John Doe. I understand that we’re trying to do an unsupervised administration here. I’m OK with that. Go ahead.” And if everybody agrees it’s good, you’re good to go.
But if even one person says no, I don’t want to do that. You know, guess what? Supervised administration for you.
And so I try that often. When it works, great. You know, it takes a little longer than having it pre-authorized in the Will, but it’s equally effective.
But again, it only takes one person to say Nope we can’t do it.
Conclusion: Get Situation-Specific Advice
So that’s kind of the two routes to get unsupervised administration. Planning ahead is great. Getting consents works too, and if you call me to talk about a probate administration or estate planning, we will talk about, you know, which version is right in your situation. This was just kind of a general explainer, not legal advice for you. So. Give me a call or book an appointment online if you want to talk more about it, but I hope you’ve enjoyed this one. Thanks and bye.
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Hi, it’s Andy Stautz at Stautz Law. I’m back today with another estate planning talk on estate planning for children. Not you know, for children, they can’t do estate planning, but for your children, estate planning around children.
And this is in some way a follow up to [my other video talks] “when to revise your estate plan” and “estate planning for young adults” because you know, usually having your first child or having your, you know, successive children is something that’s happening to you, it’s a big life event, you know, as a young adult. And it has estate planning consequences.
So Step 1 is: Your children are very important heirs in the eyes of the law. So even if you’re… well… “Even if you’re married”… if you are married, and you have children, you might want every – all your property to go to your spouse, but actually your children are entitled to half of it!
That’s convenient when you are older and your children are adults, but it is very inconvenient when you have minor children. So when you’ve got a baby. If something happens to you the very next day. You know, half of your property is not going to your spouse. It’s going to your newborn. And then you’ve got 18 years of property guardianship to deal with. Which is tedious, not to mention expensive.
So. The best plan is at at the very, very least have a will to override that intestate share. Right, to make sure that your property goes just to adults and not to minor children.
Better still is to have a revocable trust with your spouse, if you have one. You know, joint trusts. Or on your own if not. Because that gives you way more control over how your property passes to your minor children. Or major children. What a revocable trust can do is stage an inheritance over time. It can limit or condition an inheritance on certain life events. Umm. It can keep your children from having to have a guardian in a probate proceeding. All of which are good things for most people.
You know, you might have special concerns, but in general it’s useful to most parents to say, OK well, you know, discretionary distributions for college expenses, you know, lump sum at age 25 or half at 25, half at 30, because what you don’t want to do is have minor children responsible for large sums of money, responsible for property when they can’t legally take action about it, and also you probably want to avoid the situation where your child turns 18 and all of a sudden they come into a big inheritance.
Because while generational wealth is usually great, it can also ruin lives if it’s given at the wrong time and under the wrong conditions.
So just to recap, you know, the possible variations of your your family situation and your children are basically endless. But the two big takeaways are: 1) have some plan in place because the 50% intestate share is really inconvenient. 2) Your plan should probably include a trust if you want to do anything more complicated than just dump money on your children at 18.
So that’s the long and short of it. Look at it as a childcare expense. You know, it costs money up front, but it’s a prudent decision to guard against all the crazy things that can happen if you don’t.
So again, a topic that requires personal planning, but that gives you kind of an idea of of what to look at. You can book a planning meeting with me online. You can give me a call.
Congratulations. If you just had kids, that’s great. Look forward to talking to you soon. Thanks and bye.
Want to talk more?
Book your initial planning meeting with Stautz Law and we’ll discuss your individual needs. No obligation.