Probate has developed a bad reputation for being bureaucratic and time-consuming. In practice, it can be an important legal process for overseeing the distribution of a deceased person’s assets, paying valid and enforceable debts, transferring assets according to the deceased person’s wishes, and ensuring compliance with state laws and regulations. Critically, not all assets are subject to probate court jurisdiction. Assets that are already set up for transfer do not pass through probate. These include jointly owned accounts, assets with named beneficiaries, and trust assets. Indiana also offers options for smaller estates that can reduce the administrative burden of probate.

If your family needs assistance with the probate process or you are exploring estate planning options to help you avoid probate in Indiana, an estate planning and probate attorney can answer your questions, prepare a comprehensive estate plan, and help you navigate the estate planning and probate court process.

Key Takeaways

• Probate only applies to property owned solely by the deceased person at the time of their death without a named beneficiary or surviving joint owner.
• A Will does not avoid probate. Instead, it determines what happens to property once it is in probate.
• Various estate planning tools are available for individuals who wish to avoid probate in Indiana. An experienced estate planning attorney can analyze your situation and advise you on which tools will best meet your needs and objectives.
• In Indiana, estates valued at less than $100,000 may qualify for a simplified probate procedure. Larger estates may still be eligible for estate distribution procedures that require less court oversight.

Is Probate Necessary?

Many people are told they should “avoid probate” but do not fully understand the process, what it entails, or what triggers it. Probate only applies to property that is held solely in the name of the deceased person at the time of their death, with no designated beneficiary and no surviving joint owner. These are known as “probate assets” and are managed by the deceased person’s personal representative and distributed according to the deceased person’s Will, if they had one, or according to state intestacy laws.

Does Having a Will Avoid Probate in Indiana?

Having a Will does not avoid probate in Indiana. A Will determines what happens to property once it is in probate. It does nothing to avoid the probate process, but it can streamline the process by nominating the individual you wish to handle your affairs and outlining how you want your assets to be distributed after your death.

Why Do People Avoid the Probate Process?

While probate is an important process, avoiding it can offer advantages. By avoiding probate, estate beneficiaries do not need to seek court approval to transfer assets or operate the deceased person’s business. Avoiding probate can also save time and money, and help protect privacy. Probate is a public process, meaning anyone interested in a probate proceeding can look at court filings or attend a probate hearing.

What Legal Tools Can Help Keep Property Out of Probate?

Various legal tools are available to avoid probate in Indiana. An estate planning attorney can determine which tools are best for your unique situation. For estate planning tools to be effective, they must be set up properly and regularly updated to reflect your current situation and wishes.

Living Trust

A living trust is among the most common tools for avoiding probate. The trust-maker (also known as the grantor or settlor) places assets in the trust and can access and use them during their lifetime. When the trust-maker dies, the trust directs how the trust assets are distributed. Because the trustee holds the trust assets, they do not pass through probate.

Irrevocable Trust

An irrevocable trust cannot be changed once created. Irrevocable trusts are commonly used to direct trust assets to a charity, maintain eligibility for government benefits like Medicare or Social Security Disability, or prevent a young person from gaining access to a large sum of money before they are ready. Irrevocable trusts can also be used to address other estate planning needs.

Transfer-on-Death and Payable-on-Death Designations

Bank accounts, stocks, bonds, brokerage accounts, and real estate can all be transferred using Transfer-on-Death (TOD) or Payable-on-Death (POD) designations. When the owner dies, the asset transfers to the named beneficiary without passing through probate.

Accounts with Named Beneficiaries

Life insurance policies, individual retirement accounts (IRAs), 401(k) accounts, and other retirement plans typically have named beneficiary designations. Because the contract specifies the beneficiary, these assets do not pass through probate.

Property Titled Jointly With a Right of Survivorship

Jointly owned assets with a right of survivorship do not pass through probate. When one owner passes away, ownership transfers to the other owner without passing through probate. Joint ownership is common among married couples, where they share ownership of real estate, bank accounts, motor vehicles, and other assets.

Shortcuts that Can Simplify Probate in Indiana

Certain estates may qualify for a simplified probate procedure. In Indiana, estates worth less than $100,000 qualify for simplified probate administration using a sworn affidavit filed at least 45 days after death. The notarized affidavit is presented to financial institutions, the Department of Motor Vehicles, and other institutions to transfer the deceased person’s assets.

For estates that do not qualify for a small estate affidavit, Indiana allows for unsupervised administration, in which the personal representative can administer and close the estate with minimal oversight from the probate court. Unsupervised administration can be a beneficial option for simple estates when all heirs agree.

Indiana allows for the transfer of real property using a “passage of title affidavit” or “devolution affidavit” filed with the recorder’s office of the county where the real estate is located. You can file the affidavit at least 7 months after the property owner’s death.

An Estate Planning Attorney Can Help You Avoid Probate

Probate can be expensive and time-consuming, and many people wish to avoid it. Avoiding probate is possible in Indiana, but it depends on using the correct estate planning tools and keeping them current. The probate and estate planning attorneys at Moore Law, LLC, can create a comprehensive estate plan that can help you avoid probate in Indiana.

Moore Law, LLC, is located in Batesville and proudly serves clients throughout southeastern Indiana and the rest of the state. Contact our experienced probate and estate planning team today to schedule an appointment to discuss your situation and how we can assist you.