Indiana Probate Attorney
Amber K. Boyd Attorney at Law prides itself on guiding families through one of the most tumultuous times of their lives. The probate and guardianship process in Indiana is complex and at times even difficult to navigate, but with our calm resolve, attention to detail and experience our firm guides clients through the process by first educating our clients on the legal process.
INDIANA SMALL ESTATE ADMINISTRATION
Generally, in order for the attorney to dispense with the estate administration process entirely, the value of the decedent's gross probate estate (less liens and encumbrances) must be less than, or equal to, $50,000. Ind. Code§ 29-l-l-3(a)(8). Only probate assets are to be considered in making this determination. Probate assets are assets that are titled solely in the name of the deceased.
There are two different small estate procedures in Indiana. The first is a procedure to collect the deceased assets entirely by affidavit, without any Court involvement. Ind. Code § 29-1-8-1. The second is a procedure that allows a Personal Representative, or an individual that has collected assets by affidavit, to make immediate distribution of the deceased's assets and file a Closing Statement with the Court. Ind. Code§§ 29-1-8-3 and 29-1-8-4.
However, as a preliminary matter, we will need to gather information about value of the deceased's assets in order to assess whether the estate qualifies as a “small estate.”
INDIANA FORMAL ADMINISTRATION
A formal court administration is required if the if the deceased assets exceed $50,000.00. However, a review of the type of court administration is needed: supervised or unsupervised in order to begin.
Supervised Administration
Supervised administration is governed exclusively by the relevant Indiana statues and local court rules. The personal representative has no independent authority and must first request approval from the court prior to taking any administrative action in the estate. As a result the legal fees associated with representing this type of estate can be higher, and the time it takes to fully administer the estate will be longer. On the other hand, the over sight of the court offers significant transparency for the beneficiaries and creditors, which in turn protects both the personal representative and the attorney.
Unsupervised Administration
Unsupervised administration involves significant less oversight by the Court and consequently, can prove a more efficient and less costly choice if applied to the appropriate matter. With an unsupervised estate, the Court is essentially only involved in three distinct phases of administration: at the beginning to ensure that the estate is properly opened and all the required notices are given; in the middle to ensure that an inventory was prepared; and at the end to facilitate the distribution of the estate's assets. Otherwise, the personal representative has the independent authority to administer the estate's assets, pay claims and expenses, and distribute the proceeds of the estate.
Unsupervised Administration vs. Supervised Administration
Some questions to ask before choosing the form of administration are as follows:
1) Is there a Last Will and Testament? If so, what does the Will say in regards to the form of administration?
2) Is the estate solvent (i.e. more assets than liabilities)?
3) What do the local court rules require for unsupervised administration in county of venue?
4) Who are the heirs/legatees/distributees? a. What is their relationship to each other? b. What is their relationship to the personal representative(s)?
5) Who is (who are) the personal representative(s)?
- If there are multiple personal representatives, what is their relationship to each other?
- How responsible and responsive are the appointed personal representatives?
- What is their financial acumen?
- How stable is their personal financial situation? Is there a risk of self-help due to feelings of”entitlement” or outright need?
6) What is the potential for discord among the parties of interest? If litigation is possible, consider more court oversight rather than less, by way of supervised administration. Under IC 29-l-7.5-2(c), the administration can always be changed by way of a court order or at the request an interested party, if it is later determined the original choice of court supervision is no longer beneficial to the estate.
Please contact Amber K. Boyd Attorney at law if you have any questions.