Estate Administration

Question 1

What are the elements of a valid will in IN?

Answer 1

1) The testator must be of sound mind and at least eighteen years old ( unless a member of the armed forces or the merchant marine).
2) The will must be executed in writing (OR electronic) (nuncupative wills discussed below) and signed by the testator and two (2) witnesses.
3) The witnesses must sign in the presence of the testator and each other.
4) Witnesses must be competent at time of signing (subsequent incompetency does not prevent probate of the will). [often challenge made over witness being witness - normally being a fiduciary does not create a problem]

Question 2

What is testamentary capacity?

Answer 2

A person has testamentary capacity if he knows:
1) the extent and value of his property,

2) the names and number of persons who were the natural objects of his bounty (i.e., heirs at law);
3) their treatment towards him, and
4) possesses sufficient memory to retain the facts necessary to direct the making of the will

Question 3

What are the rules around witnesses to a will?

Answer 3

The witnesses should NOT be interested parties to the will.

No attesting witness is interested unless the will gives him or her some personal and beneficial interest.

Naming a person in the will as executor, trustee, or guardian, or as counsel for the estate, personal
representative, trustee or guardian does not make that individual an interested person.

Question 4

What happens to the interested witness’s share if the will cannot be proved without that witness?

Answer 4

if an interest does pass to a witness, and if the will carmot be proved without that witness’s testimony or proof of that witness’s signature, the will is void as to that witness and persons claiming under that witness and the witness may be compelled to testify about the will execution.

If, however, the witness would have been entitled to a distributive share of the testator’s estate on an intestate basis, the witness can receive the intestate share.

*Note that if the second witness is disinterested, this shouldn’t be a problem

Question 5

Does the will have to have a self-proving clause

Answer 5

No. But if there isn’t one, need a proof of will at time of probate.

Question 6

What if there is only one testator signature after the attestation clause and not elsewhere in will?

Answer 6

Case law says it’s still an effective will.

Question 7

What is an electronic will?

Answer 7

Originally still had to be in presence of witnesses and testator. Need to be identified with a driver’s license or other document.

Custodian can charge a fee for maintaining an electronic will.

Now have remote signing statute.

Question 8

What is a nuncupative will?

Answer 8

A nuncupative will is an oral will, sometimes called a “deathbed” will since it can only be made by a person in imminent peril of death from illness or other means, is only valid if the person dies of imminent peril.

The nuncupative will, which can only dispose of personal property to an aggregate value not exceeding $1,000) ($10,000 for active military, air or naval service in time war) must be:

1. Declared to be his will by the testator before two (2) disinterested witnesses;
2. Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
3. Submitted for probate within six ( 6) months after the death of the testator.

Question 9

What are the rules regarding “no contest” or “in terrorem clauses” in Indiana?

Answer 9

As of 2018, these are valid clauses in IN.

They do NOT apply to:
1. A challenge by a beneficiary if the Court finds “good cause”

2. an action brought by a fiduciary unless the fiduciary is a beneficiary against whom the clause is enforceable.
3. Beneficiary agreement to resolve a matter
4. An action to determine if something is a will contest
5. An action for construction of a will
6. Objection to proposed distribution, fiduciary fees, or other matter over which court has discretion.

Question 10

Can a testator include a restraint on marriage?

Answer 10

No for a surviving spouse - A term that says spouse cannot remarry is VOID under IN law.

Recent case law does allow restraint on marriage terms for children or non-spouses.

Question 11

What is the rule for ademption?

Answer 11

Ademption by extinction. (But a change in form of account but not substance may not result in ademption.)

Question 12

What are the rules of abatement?

Answer 12

Order in which assets are used in estate to pay debts.

a. Property not disposed of by the will.
b. Property devised to the residuary devisee.
c. Property disposed of by the will but not specifically devised and not devised to the residuary devisee.
d. Property specifically devised.

Question 13

What powers must joint PRs exercise together?

Answer 13

Unless the will provides otherwise, all powers of a personal representative can be exercised by any one of two or more joint personal representatives except the
following:
a. The institution of a suit on behalf of the estate;
b. The employment of an attorney;
c. The carrying on of the decedent’s business;
d. The voting of corporate shares of the estate; or
e. The exercise of those powers given by the will which, by the terms of the will, are to be exercised only by all of the personal representatives.

Question 14

What is the time for probate of a will?

Answer 14

1. Three (3) years after decedent’s death;
2. 60 days after order denying will of previously offered will;
3. 60 days after entry of an order revoking probate of previously probated will.

**For person presumed death, three years from date death established by legal action.

Question 15

What happens if will not timely probated?

Answer 15

This subsection applies with respect to the will of an individual who dies after June 30, 2011. If:

(1) no estate proceedings have been commenced for a decedent; and
(2) an asset of the decedent remains titled or registered in the name of the decedent;

the will of the decedent may be presented to the court for probate and admitted to probate at any time after the expiration of the deadline determined under subsection ( d) for the sole purpose of transferring the asset described in subdivision (2).

Question 16

How does PR find “reasonably ascertainable creditors”?

Answer 16

Go through mail
Review tax returns
Contact medical providers
Ask POA, friends, family
Review checkbook, etc

Question 17

When does Medicaid a “reasonably ascertainable creditor”?

Answer 17

Per statute, notice must be given for all decedents over age 55

Question 18

What is the priority of claims/expenses in an estate.

Answer 18

1. Costs and expenses of administration.
2. Reasonable funeral expenses. However, note that in any estate in which the decedent was a recipient of public assistance, the amount of funeral expenses
   having priority over any claim for the recovery of public assistance is limited. Basically, the state has a policy that a decedent who dies with a limited estate may not exhaust the estate with expenses of administration and an expensive funeral, leaving nothing for the state agencies to recover.
3. Spousal and family allowances.
4. All debts and taxes having preference under the laws of the United States.
5. Reasonable and necessary medical expenses of the last sickness of the decedent, including compensation of persons attending him.
6. All debts and taxes having preference under the laws of Indiana.
7. All other claims allowed.

No preference is given in the payment of any claim over any other claim of the same class, nor is a claim due and payable be entitled to a preference over claims not due.

Question 19

How does a spousal election against the will work?

Answer 19

1) First Spouse OR subsequent spouse who had children with decedent takes 1/2 of net personal and real property.
2) Subsequent childless spouse AND decedent left children from a previous marriage, takes 1/3 of personal property and 25% of real estate less liens and encumbrances.
* Must file to elect within 3 months of probate of will (same time as a will contest)

Question 20

Does a spouse have to file to get an allowance?

Answer 20

No. But, if spouse wants to direct as to payment b/n personal or real property, needs to file claim w/in 90 days after estate is open. If no claim filed, allowance is paid: intangible property, tangible property, then real property.

Question 21

What is a “foreign personal representative” and a “domiciliary foreign personal representative”?

Answer 21

A “foreign personal representative” is a personal representative appointed in a jurisdiction other than Indiana to administer a nonresident decedent’s estate, and a “domiciliary foreign personal representative” is a foreign personal representative appointed in the jurisdiction where the decedent was domiciled at the time of death

Question 22

What are the options for ancillary administration in IN?

Answer 22

Can probate will and get full jurisdiction administration here.

OR

A domiciliary foreign personal representative, upon showing that no local administration is pending, can file authenticated copies of his appointment and bond in the county court in Indiana where the decedent’s property lies and can proceed with all the powers of a local personal representative

Once that PR does any act in IN, that PR submits to the jurisdiction of IN courts.

Question 23

Can a domiciliary foreign personal representative use an AFFIDAVIT to transfer real property in IN?

Answer 23

No.