When is Probate Necessary in Indiana?
When a person dies, their assets are distributed in the probate process. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.
If small estate procedures may be used, an affidavit may be used to distribute the assets of the deceased in a summary process. If the estate doesn't qualify as a small estate, it may be necessary to have the estate probated and receive letters testamentary. The court will issue testamentary letters to the executor or administrator, giving the authority to handle the affairs of the deceased.
If the decedent was a resident of Indiana at the time of her death, it is possible small estate procedures may be used to collect the assets if the estate is not worth more than $50,000. If the value is higher, it will be necessary to open a probate case and petition the court to have an administrator appointed for the estate.
In Indiana, where the value of the entire assets of the estate does not exceed $50,000, a small estate may be administered by a small estate affidavit. After the affidavit has been approved by the court, the affidavit may be used to collect debts owed to the decedent.
The affidavit is filed with the clerk of the court in the county where the deceased resided. It lists certain information required by statutes, such as all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history or other facts concerning heirship that show the distributees' rights to receive the money or property of the estate. Please see the information at the link below for statutes and specific requirements. A link to an heirship affidavit has also been provided.
Once approved by the court, the affidavit may be presented to those who owe debts to the deceased, such as a bank, in order to collect the property or money owed. If small estate procedures are not available, it is possible to probate an estate without an attorney. Please see our Indiana probate forms.
Please see the following IN statute:
SECTION 473. IC 29-1-8-3, AS AMENDED BY P.L. 95-2007, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]:
Sec. 3. (a) If it appears that the value of a decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of:
(1) twenty-five thousand dollars ($25,000), for the estate of an individual who dies before July 1, 2007, and fifty thousand dollars ($50,000),for the estate of an individual who dies after June 30, 2007;
(2) the costs and expenses of administration; and
(3) reasonable funeral expenses;
the personal representative or a person acting on behalf of the distributees, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled to it and file a closing statement as provided in section 4 of this chapter.
(b) If an estate described in subsection (a) includes real property, an affidavit may be recorded in the office of the recorder in the county in which the real property is located. The affidavit must contain the following:
(1) The legal description of the real property.
(2) The following statement:
(A) If the individual dies after June 30, 2007, the following statement: "It appears that the decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of the following: fifty thousand dollars ($50,000), the costs and expenses of administration, and reasonable funeral expenses.".
(B) If the individual dies before July 1, 2007, the following statement: "It appears that the decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of the following: twenty-five thousand dollars ($25,000), the costs and expenses of administration, and reasonable funeral expenses.".
(3) The name of each person entitled to at least a part interest in the real property as a result of a decedent's death, the share to which each person is entitled, and whether the share is a divided or undivided interest.
(4) A statement which explains how each person's share has been determined.