When a loved one passes away, families are often faced with important legal and financial tasks. In Indiana, one of these tasks may involve probate. Probate gives the court authority to manage the transfer of assets and payment of debts. Knowing how the process starts can provide clarity during a difficult time.
When you need to open probate
Probate proceedings typically begin within weeks or months after death, depending on the estate’s circumstances. Initiating probate involves reviewing details about your loved one’s affairs. The process includes identifying assets and determining their value. It also addresses outstanding debts or creditor claims.
Assets such as real estate, financial accounts and vehicles usually require probate to transfer ownership. However, Indiana law may provide simple steps for small estates valued under $100,000. Estates above this threshold generally require formal probate administration.
Filing the probate petition
The probate process begins by filing a petition. It must be filed in the county where the deceased person lived at the time of death. The petition generally includes basic information about the deceased, surviving family members and the estate.
Starting the probate process also requires several important documents:
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The original will, if one exists
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A certified death certificate
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The sworn oath of the personal representative
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Completed probate forms
Filing these documents lets the court open the estate and begin the process. Note that the court charges a standard filing fee that varies by county.
Appointing a personal representative
The court appoints a personal representative to oversee the estate during probate. If a will exists, the court appoints the executor named in the document. If not, the court often names the spouse or an adult child.
A personal representative has several key duties during probate. These duties include:
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Identifying and inventorying estate assets
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Notifying creditors and interested parties
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Paying valid debts, taxes and estate expenses
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Distributing property to heirs and beneficiaries
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Filing accountings and financial reports with the court
The personal representative has a “fiduciary duty” to act in the estate's best interest. These duties must be carried out carefully and follow all Indiana probate rules.
Moving forward with the probate process
Probate involves complex legal requirements and strict deadlines that can be challenging to manage alone. In such cases, legal counsel can help prepare and file court documents. Guidance from a knowledgeable advocate can also help maintain compliance with Indiana probate laws. This support can help make a challenging time more manageable.
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"My father passed away and left me a large sum of money", a reader related in a recent Dear Abby letter. After paying off debt, she decided to give each of her three adult children a Christmas gift:"from me and their grandfather". The letter-writer's husband of one year was not happy, feeling that his adult children should be given Christmas gifts as well. Abby's answer - "Your husbands' children are not entitled to a share of your inheritance."
Estate planning for second marriages (after divorce or death of a first spouse), especially when there are children from prior marriages, is a lot more difficult, and, at Geyer Law, our goal is to tailor-make a plan for each of our clients, especially those in second marriage situations. As Texas Probate Lawyer points out, the spouses will typically want to provide for their surviving partner, but they want to be sure the assets end up with their children (not the surviving spouse’s children)
In the Dear Abby scenario quoted above, it appears there was no prenuptial agreement addressing financial scenarios such as the receipt of an inheritance by either of the parties. Tellingly, the letter writer reveals that her husband refuses to go to marriage counseling with her. What we have learned as Indiana estate planning lawyers is that, as hard as couples may find it to discuss money matters, including inheritances, communicating on these sensitive areas works to strengthen the relationship. While we are not marriage counselors, we often find ourselves serving as discussion moderators and guides.
In the Dear Abby scenario, the debate over the wife's newly inherited wealth undoubtedly posed a threat, not only to the couple's relationship, but that of her children and his. We have no way of knowing from the column whether the grandfather, upon learning of his daughter's remarriage, had revealed to her his own intentions relative to the "combined family" and the addition of a new set of great-grandchildren. In general, however, as longtime Indiana estate planning attorneys, we’ve learned the value of facilitating family conferences so that the younger generation becomes acquainted with the values and assumptions that have gone into the older generation's estate planning choices, with differing expectations, issues, and misunderstandings brought to the table while everyone is there to participate.
It's that old "ounce-of-prevention" concept that is so very relevant to the estate planning process.
- by Cara Chittenden, Attorney with Rebecca W. Geyer & Associates]]>
"Before assets reach children or charities, they most often move to a surviving spouse," Erica Ellis points out in Financial Advisor Magazine, urging financial advisors to establish relationships with both spouses. "The moment of transfer" (after one spouse has passed), is not when the other should read a trust agreement or learn about an investment account for the first time."
After all, as Ellis points out, "A deceased spouse's estate plan functions as the governing document for their surviving spouse's financial life." That plan determines:
"Survey reveals Americans' increasing openness to new methods of burials," Tanya D. Marsh, a professor at Wake Forest University explains in an Indianapolis Star piece. Of the six legal methods of disposition of human remains (cremation, casket burial, green burial, donation to science, water cremation and human composting), only the first three are nearly universally available in the U.S.
"Although Americans have, for a long time, largely limited themselves to burial or cremation, the survey revealed remarkable openness to new methods." Surprisingly, Baby Boomers were the least willing to consider casket burial, while the youngest adults were moving in the opposite direction, ranking casket burial as their first choice, Dr. Marsh reports.
"Death is a topic often avoided in casual conversation, shrouded in cultural taboos and personal discomfort," Kent Phelps of Trajan Wealth in Arizona admits. But shying away from that topic "can lead to complications, not only emotionally, but also in practical matters such as estate planning."
At Geyer Law, since we are estate planning attorneys, the topic of death is naturally part of our discussions with clients. We know planning ahead helps all parties, allowing our clients to take control of their own future care and protecting those who may need to speak on their behalf later. An Indiana Funeral Planning Directive, we explain, allows you to choose the specifics of your funeral and burial wishes and appoint a representative to carry out those intentions.
The survey didn't ask people to explain their reasoning, and intentionally left out costs, Dr. Marsh explains. Still, she notes, the numbers suggest that many Americans are choosing cremation because their actual first choice is unavailable in their state or too expensive.
Here at Geyer Law, we certainly hope Dr. Marsh's impression of increasing openness about discussing death-related decisions proves correct. We continue to observe that, while there will always be a "deadly side" to estate planning conversations, inter-generational family conferences allow parents to openly share the values and assumptions -- along with the issues -- that have gone into their estate planning choices.
- by Cara Chittenden, Attorney with Geyer Legal Group]]>
"Moving the tassel from the right side of the cap to the left signifies a rite of passage, marking the transition from one phase of life to another," the Honor Society Magazine explains. "The gesture also represents the graduates' readiness to take on new challenges and pursue their future goals.
From a legal standpoint, as state law dictates, it's about more than that. Once a student turns 18, as a FindLaw article explains, a no-longer-minor has the power to undergo – or forego – medical treatments, play the lottery, sign contracts, and sue others.
At Geyer Law, we remind parents that an important aspect of this new status is that they are now no longer going to be able to readily access their children’s medical, financial, or educational information. Even if, due to an accident or illness, their now “adult” child were to become incapable of making decisions on his or her own, as parents they will be barred from accessing medical information and making decisions - unless they've been given prior legal authority from the child.
At our Indiana estate planning law firm, we remind parents that there’s a set of documents that need to be prepared and signed by their child before they "depart the nest":
Last week in our Geyer Law blog, Cara Chittenden discussed the fact that estate planning attorneys, CPAs, and financial planners each have a role in helping clients as they prepare to sell a business. It appears, from recent studies, however, that when it comes to helping clients with their charitable planning, the conversations don't flow quite so smoothly...
"Charitable giving is a substantial force in the United States," the Columbus Foundation asserts, yet several surveys reveal the majority of advisors are bad at talking to clients about it. According to a 2013 study of the Philanthropic Conversation conducted by the U.S. Trust in partnership with the Philanthropic Initiative, less than half of high net worth individuals felt that professional advisors --wealth advisors, trust and estate attorneys, accountants, and other tax professionals -- are good at discussing personal or charitable goals with them. Five years later, another survey by the US. Trust in partnership with the Philanthropic Initiative confirmed that observation.
Where's the disconnect? Almost half the advisors surveyed believed that reducing tax liability is the primary motivator for charitable giving. A mere 5% of the clients surveyed, on the other hand, indicated they'd stop giving if the estate tax were eliminated. The other factor at play, according to the authors of the book The Right Side of the Table, is that advisors were focused on tools, strategies, and tactics of charitable giving, instead of trying to understand the clients' goals and values. The real question in charitable estate planning is this -- "What would you like to change or preserve in the world?" In other words, as United Charitable tells advisors, "You'll want to steer your initial conversations about philanthropy towards meaningful topics (your clients' personal values" rather than on technical topics (tax advantages and estate planning vehicles)."
Having discussed charitable planning with families in central Indiana for more than a quarter century, we at Geyer Law understand the challenges and family dynamics that come into play with legal issues -- and perhaps particularly with estate and charitable planning. Not only do we stand ready to answer our clients' questions, we try hard to be mindful, in formulating our own questions and responses about charitable gifts, of the things that really matter -- to them!
- by Ronnie of the Rebecca W. Geyer blog team]]>
Last week in our Geyer Law blog, Cara Chittenden discussed the importance of having estate planning attorneys, CPAs, and financial planners work together to help clients realize their goals. Nothing demonstrates the need for precisely that kind of coordination than the sale of a business.
All too often, Mariner Wealth Advisors observe, estate and tax planning happen after the sale of a business, "when the best opportunities to protect and preserve a business owner's wealth are already gone". Pre-sale estate planning, on the other hand, they stress, "allows you to turn a one-time liquidity event into a multi-generational wealth transfer strategy."
The authors highlight four areas of focus in pre-sale estate planning: