Creating a will can feel like an overwhelming (and sad) task. However, having a legal will is a smart way to manage assets when you are no longer here. With a will in place, your loved ones or heirs don’t have to wonder how to distribute your estate, minimizing misunderstandings or disputes about those assets. 

Leaving a will behind to care for your family makes it easier for them to grieve without a complicated legal process that can last for months or years. With an Indianapolis Wills attorney, you don’t have to handle the estate planning process on your own. Here’s what you need to know.

What Is a Will? 

You might have seen movies that include stories about someone who scribbles final wishes on a piece of paper or a napkin before they die. The rest of the story consists of quarreling family members competing for money and possessions as they contest the legality of a “will” on a napkin.

A legal will filed with your state helps you avoid this kind of drama when it’s time to distribute your estate to loved ones or heirs. A will is a critical legal document that documents your wishes about disbursing your assets. If you have minor children or dependents, your will also outlines their ongoing care.

A napkin or scratch of paper can provide some direction for your final wishes. However, to protect your assets and ensure your executor handles them according to your wishes, the best estate planning lawyer Indianapolis offers can help you document and file a will to eliminate confusion about your estate.

What Does An Estate Planning Lawyer Do?

An estate planning lawyer does more than draft and file a will. With the right legal counsel, you have a partner to review every aspect of your estate, assets, and income to develop a final plan for these items. 

Hiring an attorney for estate planning also gives you a resource to prepare a living trust, health care directives, and help you avoid conservatorship or guardianship issues if you become unable to care for yourself and your assets on your own. 

Having the right attorney is an excellent way to protect yourself and your assets from harm throughout the end of your life. After you pass away, a lawyer helps keep your estate out of probate to expedite the process of honoring your final wishes. 

What Does Estate Planning Include?

Estate planning can be overwhelming without the right expert help. However, everyone needs a will. Even if you don’t have many assets, significant income, or many heirs, a simple will is a smart idea. 

Avoiding disputes during probate for your assets is critical. Leaving loved ones in limbo while your estate becomes stuck in court can add more difficulty to their grief. 

When hiring a lawyer to guide you through the estate planning process, they recommend the best ways to handle assets, money, and your estate—before and after your death—to maximize the benefits to your loved ones or heirs. 

Here’s how an Indianapolis Indiana attorney helps you develop an estate plan. 

Listing Your Assets

Before you can decide where your assets go, you must understand what you have. An attorney helps identify and document every asset associated with your estate to begin the planning process. 

Documenting Your Debt

Estate planning isn’t only about giving things away. At the time of your death, your estate becomes responsible for paying off any remaining debts in your name. When planning with a lawyer, they can help you with a strategy to reduce debt before your death to avoid passing that burden on to your heirs later. 

Understanding Taxes

Giving property to an heir after your death can also leave them with a heavy tax burden. If you own rental properties or a second home, an estate planning attorney can guide you through options to minimize the taxes when gifting real estate or other property. 

In some cases, gifting money before you pass away can save tax penalties for you and your heir. 

Converting Retirement Accounts

Leaving your 401(k) to loved ones can also saddle them with high taxes. If it makes better financial sense, an attorney will help you convert retirement accounts into Roth accounts to avoid taxing your heirs. 

Identifying Beneficiaries

Your will should include names and contact information for your beneficiaries. The estate planning process helps you identify beneficiaries and match them to accounts or assets you intend for them. With this type of detail, loved ones (and people who falsely try to claim part of your estate) have clear information about what they do (or don’t) get after you pass away. 

Distributing Miscellaneous Assets

Do you have a family heirloom you’ve saved for your son? What happens to your digital photos after you die? A thorough estate plan can account for all miscellaneous assets you want to go to specific friends or family members. 

Your plan can also include gifts to nonprofits or organizations you support and want to help through your final wishes.

Caring for Children

We hope you never leave minor children behind due to an early death. However, it’s always wise to plan for the unexpected and make sure your children have a plan for ongoing care in the event of your death. 

An attorney will help you document guardianship instructions for children or other dependents if needed.  

Choose the Best Indianapolis Wills Attorney

Not every Indianapolis Wills attorney is the right choice to walk you through the estate planning process and help your assets avoid probate. Make sure you partner with a lawyer who understands your wishes and has the experience to address every need with the right estate plan. 

Barnes Cadwell Law has decades of experience with estate planning, wills, and trusts. Contact us to learn how we can help protect your final wishes. 

An estate plan is a set of documents that you create with the help of an estate planning lawyer to protect your personal property and your assets. In these documents, it is explained how you want this property and these assets (your “estate”) to be passed on to others.

When you create an estate plan, you are outlining your wishes. On top of that, you are specifically noting who you are appointing to guard your wishes and enact them once you have passed on.

What Does an Estate Plan Include?

There are a number of different components to an estate plan. These include:

• A will that identifies who you want to be the guardian of your children, receive each of your assets, and be an executor to oversee the process
• A power of attorney who makes business or legal decisions, pays your bills, manages investments, and makes financial decisions if you aren’t able to
• A medical power of attorney, who is appointed to make medical decisions for you if you are unable
• A trust that reduces or eliminates estate taxes in high net-worth estates and controls when and how the distribution of your assets takes place

Having an estate plan doesn’t mean that you are a person with exceptional wealth. Anyone who has assets that they want to transfer to surviving loved ones after they pass will benefit from creating a formal estate plan.

When Should You Start an Estate Plan?

Many people assume that they don’t need to create an estate plan until they are in an advanced age. Actually, though, most financial advisors recommend that an individual should start the estate planning process when they become a legal adult. After that, it is recommended that you update it every three to five years for the rest of your life.

That being said, it is very uncommon for 18-year-olds to have estate planning on their mind.

There are a number of life events that could signify that it’s time to start the estate planning process. This is true no matter your age.

Savings Account

It is a good idea to start estate planning as soon as you open your first savings account. This will make sure that if anything ever happened to you, the funds would go to the loved ones or cause that you want it to.

Home and Property Ownership

If you don’t have an estate plan when you are a property owner, the distribution of your assets will go through a probate court process in the event of your death. You can avoid this by having an estate plan in place as soon as you buy your first property. You’ll want to make sure you update your estate plan when you acquire additional property or change your real estate portfolio.

When you own probate assets, it’s important to hire Indianapolis probate attorneys to help ensure that your wishes are honored.

Travel

If you are leaving the country frequently or taking long trips, it’s a good idea to keep your estate plan updated. If you are planning on taking a big trip soon, consider updating your estate plan beforehand.

Marriage and Remarriage

When you get married, you’re combining assets. This is a crucial time to begin the process of estate planning.

Children

It’s important to think about the financial security of your children and guardianship if anything were to happen to you or your spouse. With the birth of your first child and subsequent children, it’s important to have an estate plan in place.

Divorce

If your marriage has ended, it’s important to update your estate plan to accommodate the change in your life. Estate plans that you made with your previous partner will likely no longer be appropriate for your circumstance.

Inheritance of Money or Other Assets

When you inherit money or other assets, it’s a good time to work with an estate planning law firm to update your estate plan. This way, you can be sure that your assets are distributed in the way you would like in the event of your death.

Births in the Family or Grandchildren

Every time there is a birth in your family, it can be a good time to update your estate plan. This way, you can ensure that your family members are all taken care of when you pass away.

Hiring an Estate Planning Attorney in Indianapolis

Estate planning is such a crucial process that it’s essential to hire the best estate planning attorney for the job.

At Barnes Cadwell Law, we prioritize placing the needs of each client center stage. We are here to serve the estate planning needs of individuals throughout Central Indiana including Indianapolis, Westfield, Fishers, Noblesville, Carmel, and throughout Marion County and Hamilton County.

Is it time for you to get in touch with an estate planning attorney in Indianapolis? If so, contact us today!

But is this really a problem? How important is it to work with an estate planning attorney in Indianapolis? What happens to your property and finances upon your death if you don’t?

Here’s what every family needs to know about estate planning and probate law.

What Is Probate?

Probate law is the body of law that governs the handling of your assets when you die. In all cases, it involves:

• Identifying and valuing your assets
• Identifying any debts you owe or other claims on your estate 
• Notifying all prospective heirs 
• Ascertaining what your estate owes in taxes
• Dividing your estate 

If you die with a will, probate involves:

• Determining that the will is valid, legal, and final
• Addressing any challenges to the will
• Adjudicating situations in which the will is found to be non-compliant with the law
• Identifying and addressing the distribution of any assets not accounted for by the will

If you leave no will, then state and federal laws are applied to divide and reassign your assets. This process can take years to complete. It is often expensive, messy, and stressful for everyone involved. 

In situations where there is no will, probate rarely results in the outcomes the deceased expected or wanted. Unexpected amounts of money are lost to taxes and legal fees. The law may force the sale of properties and beloved possessions the deceased intended to pass on to their heirs. 

While many Americans believe that their spouses or children will automatically inherit their homes or assets, this is not the case. 

The Benefits of Estate Planning

The primary purpose of estate planning is to:

• Take control of your assets and identify any assets that pass by operation of law
• Prevent the unnecessary loss of assets when you die
• Protect your loved ones in the event of your death

If you die without proper legal planning and arrangements, your family is at the mercy of the law. The law, rather than your wishes, will dictate who gets what. The end results often end up satisfying no one. 

Your family will also likely pay large amounts of money out of the estate during the probate process. By the time everything is settled, there may be nothing left. Worse, your family may face debts from settling your estate!

Estate planning, by contrast, gives you control. 

An Indianapolis estate planning and probate attorney can help you select, sign, and file the right documents to:

• Ensure that your home, bank accounts, and other assets pass seamlessly to the people of your choice
• Avoid hefty fees and taxes during those transitions
• Spare your family the time and strain of a lengthy probate process

Protecting Your Loved Ones

Perhaps most importantly, estate planning helps you protect the people that you love. This is important for everyone but can be especially crucial if:

• You and your partner are not legally wed
• You have minor children
• You are the caretaker for a disabled parent, spouse, child, or sibling 
• Third-parties such as ex-spouses or children by people other than your spouse may have a claim on your estate

Working with an estate planning attorney in Indianapolis can give you the peace of mind of knowing exactly what will happen when you die. 

Why Working With Indianapolis Probate Attorneys Is Vital

Estate planning and probate law can be complex. To be successful you must take into account:

• State and federal inheritance laws
• State and federal ownership and tax laws
• Detailed wording and filing requirements for legal documents 

While you could attempt to write a plan and a will by yourself, it would be a massive undertaking. Even small mistakes could cost you dearly in the long run. Moreover, working alone makes you less likely to identify and take advantage of creative options that could help you achieve your goals, such as living trusts. 

A host of online tools and programs claim to help Americans write their own wills and estate plans. In reality, these are rarely any better than doing the work alone. They simply cannot account for the vast complexities of modern family and financial landscapes. 

It is all too easy to miss state-specific rules and laws using such tools. As with working alone, you also miss out on the chance to take advantage of creative solutions. 

Indianapolis estate planning attorney, by contrast, have the knowledge and experience to help you:

• Make plans that abide by and account for all relevant laws
• Navigate complex financial or personal situations
• Identify creative solutions to common problems 
• Make informed and satisfying decisions about what you want
• Create and file documents that will stand up in court 
• Create and file documents that will result in exactly what you want to happen

Your attorney can also interface with your CPA, your financial advisor, and other professionals you are working with to help smooth communication and reduce the effort needed on your part during the planning process. 

No Estate Is Too Small

Some Americans make the mistake of believing that estate management is only for the wealthy. They assume that because they have only modest assets, they have no need for formal estate planning.

This is a dangerous misconception. In reality, even small estates can be hit hard by probate and taxes. In fact, families with fewer assets to begin with tend to be less able to handle the costs and losses of probate than those with larger estates. 

No matter how small or simple you believe your estate to be, it is important to consult an attorney when writing your will and laying plans to protect your family in the event of your death. 

Schedule a Consultation 

No matter what your age, estate planning is the only way to protect the people you love and your assets when you die. Schedule a consultation today to talk to an Indianapolis probate attorney about how they can help you take control of your estate and spare your family the stress and costs of probate.

With so many complex laws and tax regulations involved in estate planning, you should seek legal advice from an experienced attorney. At Barnes Cadwell Law, we will create an estate plan that considers every aspect of your lives. Call us today at (317) 804-5058.

Do Unmarried Couples Need an Estate Plan?

An estate plan does not only decide what happens to your stuff when you die. It can also develop a plan for who cares for you when you become incapacitated. Estate plans are essential for both married and unmarried couples who want their own wishes carried out in the future.

Estate plans for unmarried couples look similar to those for married couples. However, it is much more important that unmarried couples have one because they do not have many of the same legal protections as married couples.

The legal system affords many benefits to married couples, including:

• Social security benefits
• Filing joint tax returns
• Filing a joint bankruptcy
• Immigration options
• Homestead rights
• Visits to the hospital
• Inheritance

It can be difficult for unmarried couples to obtain the same benefits without legal documents in place, such as an estate plan.

Necessary Parts of Estate Planning for Unmarried Couples

Although every estate plan looks different because every couple will have different needs, there are some considerations that all estate plans should have.

Avoid Probate.

A good estate plan can help you avoid probate, which may not transfer your stuff to your partner. Instead, probate may give your assets to blood relatives, even if that is against your wishes. Your partner would have no rights to your house and other possessions after you pass away if your estate goes through rigid intestacy laws.

You can transfer your assets into a living trust that is jointly owned by both you and your partner. This is not the same as a last will and testament. There are many differences between a will and a trust. In some situations, your partner might inherit your house or they might have the right to live in it for as long as they want. Essentially it avoids probate.

You can also create a joint tenancy with your partner so that you both own property together. Upon the death of one joint tenant, the other automatically becomes the owner of those assets. Although there are challenges with a joint tenancy, especially if you owe a mortgage, it is an option to avoid probate.

Appoint Your Partner as Your Attorney-in-Fact.

An essential estate planning document for unmarried couples is the Durable Power of Attorney or Health Care Surrogate. This power of attorney will allow your partner to act for you in financial and medical situations if you become incapacitated.

Your Partner Should Be Your “Pay-on-Death Beneficiary.”

You should name your partner on all insurance policies, retirement plans, and bank accounts as your “pay-on-death beneficiary.” This will ensure they receive your assets upon death.

Create a Digital Estate Plan.

You will want to create a plan for your digital assets as well, such as cryptocurrency, websites, e-mail, Facebook accounts, and more. Upon your death, you will want your partner or someone close to you to take over these accounts.

Instruct Your Partner of Your Wishes.

You should write a letter of instruction to your partner and save it with your estate plan to ensure they understand where all of your assets are located and how to obtain them.

Contact an Estate Planner for Help With Your Future

Estate planning for unmarried couples can be more complex than it seems. Don’t take a chance that something will be missed. Call Barnes Cadwell Law today at (317) 804-5058.

Assets That Don’t Need to Pass Through Probate

Assets will only need to go through probate when there are multiple heirs. For instance, if one spouse dies and the couple owned everything (including their home) together, then none of these assets would have to pass through probate before becoming the property of the living spouse. Additionally, living trusts can be set up to distribute assets directly to heirs. These assets would not pass through probate prior to distribution. Other assets include:

• Retirement accounts, 401(k)s, IRAs where a beneficiary was named
• Proceeds from life insurance policies
• Assets held in a living trust
• Funds in a POD (payable on death) bank account or POD bonds
• Securities registered in TOD (transfer on death) form
• Pension plan distributions
• Employment funds (up to a certain amount) owed the deceased
• Real estate held in tenancy by the entierty (homestead property)

Essentially, there are three types of property that do not pass through probate. Those properties registered as payable on death, assets held in a living trust, and property held jointly by a living spouse.

Jointly Owned Real Estate

Assets that are owned jointly by any two parties will pass to the surviving party without having to go through probate. Most often, this involves one spouse leaving their primary residence to a surviving spouse. In Indiana, there are two ways that real estate can be transferred like this:

• Joint tenancy with right of survivorship – The deed names two or more owners and grants a right of survivorship.
• Tenancy by the entirety – If a husband and wife purchase a home together that they reside in, Indiana law establishes them both as owners of the property. If one spouse passes, the other has full rights to the property.

Living Trusts vs. POD/TOD Assets

To avoid probate for an item that is typically processed through probate, an individual would have to fill out a POD/TOD form. That asset would then pass directly to a named heir. To avoid the paperwork associated with doing this for multiple individual assets, living trusts allow trust makers to transfer items such as real estate, valuable collectibles, investments, annuities, and even businesses into the trust. When the trust-maker passes, these assets are then distributed in accord with the trust documents and the trust-maker’s wishes.

Talk to an Indiana Estate Planning Attorney Today 

An Indiana estate planning attorney can help you sort out what assets go through probate and which do not. Talk to Barnes Cadwell Law today to learn more. 

What Is an Irrevocable Living Trust?

With a revocable living trust, you still maintain control of the assets that are transferred into it. The trust is also still considered part of the trust-maker’s estate and is subject to tax liability. This is because the trust-maker can change the terms of the trust at any time or transfer property into and out of the trust without consequence.

With an irrevocable living trust, however, once a property has been transferred into it, the property is no longer considered a part of your estate. Because you have significantly less control over an irrevocable living trust, you don’t incur tax penalties on property that is technically considered property of the trust.

Property transferred into an irrevocable living trust no longer technically belongs to you. It immediately becomes property of the trust. Those who have assets that are rapidly appreciating will need to pay income or capital gains taxes on those assets and it will be considered part of their overall estate.

Why Do I Want an Irrevocable Living Trust?

Since assets held within the trust are no longer considered your property, they are no longer your tax liability either. Additionally, creditors who have obtained judgments against you cannot touch assets held in an irrevocable living trust. These are the two main functions of irrevocable living trusts.

Irrevocable Living Trusts That Can Reduce Taxes

• Bypass trusts. Established by spouses for minimizing estate taxes after both have passed. If one spouse dies, the other can still use the property but does not technically own it nor is it considered a part of their estate. Assets held within the trust do not pass through probate and are distributed directly to heirs. They also avoid estate taxes.
• QTIP trusts. Created by couples to avoid paying estate taxes until both spouses have passed. QDOT trusts are similar, but work when one spouse is not a U.S. citizen.
• Charitable trusts. Property placed in charitable trusts are moved out of your estate and can generate income for charitable organizations or have the assets held in the trust distributed to the organization upon your passing.
• Generation-skipping trusts. Used to minimize estate taxes for wealthy families. A grandchild is named as a final beneficiary while a child is named as the income beneficiary. The income generated by the trust is taxable, but it does not increase the overall value of the child’s estate. The assets are disbursed to the grandchild when the adult child of the trust-maker has passed.
• Life insurance trusts. Hold life insurance policies that can increase the overall value of an estate. For inheritance purposes, the tax liability of the policy can be avoided so long as the trust has owned the policy for at least three years.
• Grantor-retained interest trusts. Used for individuals to receive an income from the trust or live on property contained within a trust. The income is taxable, but the assets are not considered part of your estate.

Irrevocable Living Trusts That Can Protect Property

• Asset protection trusts: Can be used to protect your assets against creditors or lawsuit judgments. They are ideal for doctors or lawyers who may face major malpractice lawsuits.
• Special needs trusts: Can be established for those on Social Security or public benefits who would otherwise have or make too much money themselves to receive those benefits.
• Spendthrift trusts: Can be established for beneficiaries who may not have a sterling history of managing their own money.

Talk to an Indianapolis Estate Planning Attorney Today

Barnes Caldwell Law can help you manage your assets in the way that most benefits you and your loved ones. It is never too early to talk to an estate planning attorney. Call today to learn more about how we can help.

How Do Revocable Living Trusts Work?

Revocable living trusts are legal entities that hold ownership of your assets. These assets can be transferred from your own estate into the trust. The individual who forms the trust is called the grantor. Because the trust is revocable, the grantor can also serve as the trustee, managing and controlling the assets held within the trust.

The revocable living trust is executed over the course of the grantor’s life and there are three discrete phases to its execution.

Grantor Is Alive and Well

When the grantor is still alive, they can move assets in and out of the trust at will, use money generated by the trust, or dissolve the trust entirely. If the grantor has hired a trustee to act on behalf of the trust, the trustee would take direction from the grantor.

As a tradeoff for having sole power over the assets, the assets held within the trust are still a part of the grantor’s estate. Taxes are still collected on the assets and are not protected from creditors. For this, you would need an irrevocable living trust.

Grantor Is Incapacitated

If you have acted as the trustee during the lifetime of the trust and become incapacitated, the trust documents should name a successor trustee. If you have an attorney acting as a trustee, the attorney would simply continue to maintain control of the trust.

Grantor Passes Away

Once the grantor passes away, the trust becomes irrevocable since there is no one left who can make changes to it. A named successor trustee will pay the grantor’s bills, taxes, and debts. The remaining assets would be distributed to heirs, avoiding probate in the process. The trust’s documents would determine how the assets were distributed.

What Is a Revocable Living Trust Good For?

Trusts are generally better than wills for transferring property. Revocable living trusts especially have one major advantage over using your will to transfer property upon your passing.

While the IRS considers the trust to be a part of your estate for the purpose of taxation, the probate court does not. If your assets are listed in a will, they must pass through probate where they will become a matter of public record. Living trusts transfer your assets under the table, so to speak, and directly to your heirs. Furthermore, the property is transferred much more quickly than it would be going through probate.

Speak to an Indianapolis Estate Planning Lawyer Today

If you need to set up a trust or want to discuss the best way to manage your assets, Barnes Cadwell Law can help you make decisions that best meet your needs and goals. To learn more, contact us today.

Do You Have Standing to Contest a Will?

In order to contest a will, you must show that you have legal standing to do so. Only “interested” persons have legal standing — this could be a family member, a business partner, legal heir, or other interested party. The court will determine whether or not your challenge to the will is valid and then allow you to initiate a lawsuit on that basis.

What Is the Time Limit to File a Will Contest?

Any interested person may contest the validity of any will in the court having jurisdiction over the probate of the will within three (3) months after the date of the order admitting the will to probate…” Ind. Code 29-1-7-17 Contest of wills; requisites; grounds (Indiana Code (2022 Edition))”.

What Are Grounds for Contesting a Will?

While having standing gives you the right to initiate a will contest, you must also have valid legal grounds for contesting the will in order to move forward with a lawsuit. This means that you have some reason to believe that the will is invalid, not simply that you weren’t happy with your inheritance.

Improper Execution

A legally binding will must follow certain procedures in Indiana. If the will was not signed in the presence of witnesses or other procedures were not followed, the court can rule that the will is invalid.

Lack of Testamentary Capacity

This is the same as saying that the testator (the person who drafted the will) was not in sound mind when they drafted the will. For instance, if one of your loved ones had Alzheimer’s and forgot about the existence of their children, that person cannot draft a legal will. But proving lack of testamentary capacity is difficult. You must show that individual who drafted the will didn’t know what their assets were or to whom they should be distributed.

Undue Influence

This means that the testator was being coerced or controlled by another person to favor them in the will. Examples could be blackmail, extortion, or some other kind of pressure. Essentially, you claim that the decisions that the testator made were not their own.

Fraud

You would have to prove that the testator was tricked into signing a document, and they didn’t realize the consequences of doing so.

What Is a Will Contest Lawsuit?

If you have standing and you have established grounds for contesting the will, the case will move into litigation. During that period, the probate process will stop until the matter is settled. Often, will contests can be settled in mediation with both sides coming to some accord. In other cases, a trial will ensue. The executor represents the interests of the contested will while you contend that the will is invalid.

What Happens If I Win the Will Contest?

If you win the will contest lawsuit, the court will rule the will is invalid. If there was a previous will, the court will consider that to be the latest official will. And if there is no will at all, your loved one’s assets will be distributed according to intestate succession.

Learn More About Contesting a Will in Indiana

Will contests are no simple matter. If you have questions about contesting a will, Barnes Caldwell Law can help you determine whether you have the grounds to do so and guide you through the process. Contact us today to learn more about how an Indianapolis probate attorney can help.

To learn more about the probate process, contact Barnes Cadwell Law today. We can guide you through what could otherwise be a complicated and time-consuming experience.

What Is Probate?

Probate is the court-supervised process through which property and assets are distributed to family members and creditors after someone’s death. Each step of the probate process is undertaken by an administrator (also called an executor or personal representative). An executor is nominated in the deceased’s will or appointed by the court if there is no will.

The executor is given legal authority to gather, appraise, and allocate the estate’s assets to heirs, beneficiaries, and creditors. The executor is also given the authority to pay any debts and taxes.

Since Indiana has not adopted the Uniform Probate Code (UPC), the probate process, especially for smaller estates, is relatively complicated. In Indiana, probate usually takes six months to a year to complete. Of course, it can go on for longer if someone challenges the will or the estate includes unusual assets.

When Is Probate Necessary?

Which assets need to go through probate? Only the assets the deceased person owned in their own name. These assets are called the “probate estate” that can pass on to beneficiaries with the probate court’s oversight.

Probate is not necessary in all cases for all estates. In Indiana, if your estate is “small” or worth less than $50,000, you may be able to avoid probate altogether.

Certain assets will simply pass to heirs and beneficiaries upon the death of the owner. The following assets do not need to go through probate:

• Property held in joint tenancy: Homes, bank accounts, and other assets held by more than one person. When one person dies, the other automatically gains ownership.
• Property held in tenancy by the entirety: Similar to joint tenancy, property owned with a spouse becomes property of the surviving spouse upon death.
• Bank accounts that are payable on death: Includes special accounts set to pay out to a specified beneficiary when the owner dies.
• Property that is transferable on death: These deeds specify ownership transfer to a beneficiary when the original owner dies.
• Assets Registered on Transfer-on-Death Forms: Indiana law allows assets, such as securities and cars, to be passed on to transfer-on-death (TOD) beneficiaries by completing a form.
• Retirement accounts and life insurance: If the account holder named a beneficiary, the funds don’t have to go through probate.
• Living trust assets: Assets that are held in the name of the living trust trustee while the trustee is still alive. In Indiana, these assets will avoid probate if other assets outside the trust exceed the state’s small estate threshold.

Understanding the Indiana Probate Process

If you cannot avoid probate, an administrator will be named to handle the probate process, which usually takes place in the county where the deceased person lived.

The Indiana probate process generally requires the following steps for an administrator to settle an estate:

Getting Started

The administrator initiates probate by requesting the court to officially designate them as executor of the estate. Once named, they will file a petition for probate in the county the deceased lived in at the time of death.

Administering the Estate

Next, the administrator will safeguard, list, and value estate property. This involves opening a bank account, preparing state and federal tax returns, and filing an inventory and appraisal of assets. The administrator of the estate will be issued a document called “letters testamentary,” which will give them the ability to manage funds for the deceased person’s estate. As a personal representative, the administrator will have to correspond with banks, attorneys, and other officials to probate the estate. They will also need to publish a notice in the local newspaper and mail notices to creditors to pay debts.

Closing the Estate

After debts and taxes have been paid and disputes have been settled, the administrator can distribute assets to beneficiaries. If there is a will, the administrator will be responsible for making sure property and assets are designated appropriately. However, if there is no will, property may be distributed to beneficiaries by the court. In the end, the administrator will file a petition to close probate and request the court to release them from executor duties.

Supervised and Unsupervised Administration

The administrator can request supervised or unsupervised administration of the estate. Unsupervised administration is more common and has a lower level of court involvement than supervised administration. It generally requires less time, paperwork, money, and stress to administer and close.

• Courts will allow unsupervised administration if the estate is solvent and the will permits it. It is suitable when no disputes requiring court involvement are likely.
• Supervised administration is appropriate if there is a need for the court to be involved. This might be the case where beneficiaries are disputing or no will exists and the heirs are unknown.

Contact an Indianapolis Probate Attorney Today

A probate attorney can help you understand your responsibilities as executor of an estate, as well as help you through the probate process. For answers to questions like “How does probate work?” and “When is probate necessary?” speak to an Indianapolis probate attorney at Barnes Cadwell Law today. We can help you navigate the system and avoid mistakes that could end up wasting your time and money. Call today to learn more.

What Is a Trust?

A trust is an estate planning tool that holds your assets for designated beneficiaries while you’re alive. Like wills, trusts allow you to transfer your wealth to your loved ones after you die. However, unlike wills, trusts allow you to control the transfer while you are still living.

Trusts can be beneficial because they allow you to avoid probate. This means a quicker distribution of assets to your heirs and beneficiaries. It also translates into savings to your estate from avoiding court costs and contests. Trusts will also provide you privacy because they aren’t made public, unlike wills. This allows your assets to be distributed in private. For more details, talk to an Indianapolis irrevocable trust lawyer.

Revocable vs. Irrevocable Trusts

Trusts can be either revocable or irrevocable. Revocable trusts can be modified or withdrawn at any time while you are alive. Irrevocable trusts, however, cannot be amended or cancelled once they are created.

Trusts in a will are irrevocable because they are created after your death. In the same way, a revocable trust you create in life becomes irrevocable upon death.

Both revocable and irrevocable trusts are similar in that they’re created by a grantor who funds it with their assets. Both are also managed by a trustee who protects the assets to benefit the grantor’s heirs. Finally, revocable and irrevocable trusts benefit named beneficiaries who receive the grantor’s assets once they pass.

When Is an Irrevocable Trust Right for You?

On the surface, it may seem more advantageous to establish a revocable trust than an irrevocable trust. After all, you have more control over your assets when you can change or withdraw the trust while you’re alive. An irrevocable trust, on the other hand, requires that you give up control to an extent.

An irrevocable trust may be a better option for you if you want to accomplish certain goals. Here are four advantages of creating an irrevocable trust that might make it the best option for you:

1. Protection From Creditors

An irrevocable trust provides protection of your wealth against creditors and others who might sue you in the future. Your assets held in a revocable trust are considered part of your estate. This is due to the fact that you can cancel a revocable trust and reclaim its assets while you’re alive.

An irrevocable trust, on the other hand, is not owned by you. When you fund it, you must transfer ownership to the trust. Once you establish one, neither you nor a creditor can modify, cancel, or take assets from an irrevocable trust. So, any judgment against you after you’ve established the trust won’t target the trust’s assets.

2. Protection From Medicaid Restrictions

There’s a 50% chance that you will end up in long-term care, such as a nursing home, in the future. Medicaid can help pay the rising costs of long-term care. However, the government program has income and net worth restrictions for eligibility. An irrevocable trust can be set up to protect your assets from Medicaid’s eligibility restrictions. This will pave the way for receiving long-term care benefits should you need them at some point in the future.

3. Protection Form Your Heirs and Beneficiaries’ Creditors

An irrevocable trust can protect your wealth from your heirs and beneficiaries’ bad decisions. It can also protect your assets from creditors who may go after them. An irrevocable trust can be set up so that they can’t access their inheritance until certain conditions are met. As long as your assets are held in the trust, your heirs and beneficiaries’ creditors can’t access them either.

4. Protection From the IRS

Assets held in an irrevocable trust aren’t counted as part of your estate when determining estate taxes after you die. So, less of your wealth will be handed over to the IRS and more can benefit your heirs and beneficiaries.

An Indianapolis Irrevocable Trust Lawyer Can Help You Protect Your Assets

By consulting with an experienced irrevocable trust attorney, you will benefit from years of professional expertise and experience. We will work with you to determine whether an irrevocable trust will work for your unique needs. We will also draft the required documents necessary for your particular estate planning challenges.

At Barnes Cadwell Law, we understand that estate planning may not be a top priority for everyone, but we also know how important it is to protect your interests. We will work with you to give practical advice tailored to your needs. Contact us today to learn more about our services.

Below, we will cover the benefits of a MAPT and why it could be right for you. To learn more, contact an Indianapolis asset protection attorney at Barnes Cadwell Law today.

What Is a Medicaid Asset Protection Trust?

A MAPT provides the resources you need to afford nursing home care in the future. If you don’t have long-term care insurance, you could be stuck paying thousands of dollars a month for long-term care. If you qualify for Medicaid, you could have it cover those costs. The problem is that most of us have assets that disqualify us from Medicaid.

A MAPT can be an effective tool to have Medicaid cover your nursing home expenses without needlessly depriving yourself. It allows you to place assets in a trust so you can meet Medicaid requirements and pay for long-term care.

4 Advantages of a Medicaid Asset Protection Trust

There are four main advantages to having a MAPT that covers your long-term care payments in the future.

1. Pays for Long-Term Care and Protect Your Assets From Being Lost to Others

A MAPT is an “irrevocable trust”. So, any property you transfer into it does not belong to you and cannot be taken back for any reason. Medicaid cannot count it as an asset of yours. Plus, it cannot inadvertently be transferred to someone you do not wish to transfer it to.

Say you transfer your house to your adult child to keep it in the family and qualify for Medicaid. If, after three years, you need nursing home care and want Medicaid to cover expenses, you’ll be out of luck. Medicaid looks back to any assets you had and transferred. So, it will consider your old house as a qualifying asset and deny you benefits.

In addition, if your child files for bankruptcy or divorce, they could lose the house to creditors or their ex. They could even use the house as collateral on a loan and lose it that way.

2. Has Tax Benefits and Protects You From Having to Reimburse Medicaid

You could avoid your child losing the home that you transfer to them by keeping a life estate in it. But, if you receive Medicaid and your child sells the home, you’ll need to reimburse Medicaid the life estate’s value.

If you keep a life estate in your home, you’ll also lose a portion of your capital gains tax exclusion. On the other hand, a MAPT will maintain your capital gains tax exclusion for your whole primary residence.

Plus, with a MAPT, the equity in your home from appreciation over time will generate a higher cost basis. As a result, your capital gains taxes upon the sale of the home will be reduced or eliminated.

3. Lets You Continue Using Your Property and Income

A MAPT gives you the ability to continue using property you put in the trust. This means that if you place your house into a MAPT, you can continue living in it. You can also sell a home you put in a MAPT and purchase another in the trust’s name. While you cannot sell investments in a MAPT, you can collect income from them. All without risking your ability to qualify for Medicaid as a means of paying for long-term care.

4. Allows You to Control Your Assets Without Keeping Them

As an irrevocable trust, you must relinquish ownership of property you put into a MAPT. However, you will still have the ability to control them. Even though your MAPT trustee technically controls its assets, you have the authority to change them. Typically, a MAPT trustee will be discharged when the MAPT owner thinks its assets are not managed properly.

Contact Us to Learn More About Whether a Medicaid Asset Protection Trust Is Right for You

A Medicaid asset protection trust is only effective if it is created properly. You need the help of an experienced Indianapolis asset protection attorney to make sure your MAPT serves your long-term care needs. Contact Barnes Cadwell Law to learn more about your options, including MAPT.

What Is Simplified Probate?

Simplified probate, often called “summary probate” gives small estates a method of avoiding the complex procedures of typical probate process. Probate court can be extremely complex and often requires the help of an attorney. However, many personal representatives undertake simplified probate alone. When in doubt, a probate lawyer can be consulted regarding qualification for simplified probate or the closing statements.

Use a Simple Affidavit to Claim Property

If the value of assets left behind is lower than $50,000, then you may be able to skip probate entirely. This process requires the person to inherit property to prepare a short document, or affidavit, stating they are entitled to the property. This document is to be signed under oath. Once the affidavit is created, the person or entity holding the assets receives the document along with a copy of the death certificate, and the asset is released. Additionally, the person to inherit the assets must notify all other potential beneficiaries.

Simple affidavits can be used for an array of assets. However, they cannot be used to transfer real estate. This process is done out of court, and may allow probate court to be completely avoided in some situations. With this process, you must wait 45 days before the transfer is complete. This allows anyone who may challenge your affidavit or the transfer to come forward.

Simplified Probate in Indiana

If the total value of all property to be subjected to the probate process does not exceed $50,000, then the personal representative can distribute assets to the appropriate parties. Notification of creditors is not necessary prior to distributing assets. This method of Indiana simplified probate allows estates to save time and money in the probate process.

After the personal representative of a small estate distributes all assets, a closing statement will be mailed to all inheritors and creditors. That closing statement must indicate that the value of all property was less than $50,000. Inheritors are also owed an accounting of how all assets were distributed. If real estate was involved in the small estate, then an affidavit must be filed with the county recorder’s office where the real estate was located and along with the closing statement.

What If a Will Exists?

Even if a will exists, the personal representative of a small estate worth less than $50,000 can go through a simplified probate process. The only requirement for qualification of simplified probate is that all assets are worth less than $50,000.

What If Someone Challenges Simplified Probate?

As with any probate process, potential beneficiaries may challenge the division of assets. If someone challenges simplified probate, then a court may get involved. However, in most cases an attorney can help you iron out the details of division of assets for a small estate.

The closing statement provides all inheritors an idea of what was distributed and to whom. It’s best to let everyone know what property was distributed. If they want to challenge the situation, they can let the personal representative know or seek action in court.

What Assets Are Counted in the Value of the Estate?

Since simplified probate is only valid for small estates valuing less than $50,000, there are sometimes questions about what assets count towards that value. Anything owned entirely by the deceased person would count towards the value of their estate. However, property that is jointly owned or considered retirement plans, payable-on-death accounts, and transfer-on-death deeds, would not be counted towards the $50,000 mark.

Contact Us to Learn More About Indiana Simplified Probate

Although simplified probate can be easier than the typical probate process, it can also be confusing. You may not know which property counts towards the $50,000 value, and you may be unsure about how to distribute property correctly. An Indianapolis IN probate lawyer can provide you with guidance and inform you of your options. Contact Barnes Cadwell Law today.

So, how long does probate take? The short answer is, it depends on several factors. In this article, we’ll cover all the bases. Contact Barnes Cadwell Law to learn more.

Is Probate Even Necessary?

In Indiana, some assets need not go through probate. These include:

• Items owned in joint tenancy (by two or more people)
• Community property with survivorship rights
• Life insurance and retirement accounts with beneficiary designations
• Payable- or transfer-on-death bank accounts
• Payable- or transfer-on-death brokerage accounts
• Property held in a living trust

Small estates consisting entirely of such assets and/or less than $50,000 in other assets you can settle in days using Summary Probate laws, or after a 5-day to 45-day waiting period using affidavit property claims.

How Complicated Is the Estate?

The more complicated the estate and the more assets involved, the longer probate will take. The primary goal is to ensure that living beneficiaries receive all the belongings of the deceased. However, the probate court and the executor overseeing the estate’s distribution must do several things before this can happen.

First, they must ensure the will is valid, then identify and evaluate the assets. Next, they must arrange to pay any outstanding debts and taxes. Finally, they must notify all beneficiaries. This can take a while. Speak to our Indiana probate lawyer today.

Where Does the Executor Live?

This process is usually handled by the executor, the personal representative of the deceased. This person may be a family member, friend, or attorney. If no attorney is already involved, it’s wise to hire one to assist in the probate process. The nearer the executor is to the probate attorney’s location, the better. Distance may further slow the probate process, since many probate documents require an original, inked signature.

Fortunately, with overnight mail, it’s possible to conquer this problem — but it’s still faster if attorney and executor are located near each other.

How Many Beneficiaries Are There? Do They Agree or Disagree?

The more beneficiaries involved, the slower the process. Simply notifying them all will take time. If they live a significant distance away, this will also slow the process as the many documents the court requires them to sign are sent back and forth.

Worse, one or more beneficiaries may disagree on anything that happens during the probate. They may also be unhappy about who gets what. They may go so far as to hire their own lawyers to watch over the probate process, which can result in a lengthy review and constant bickering over the executor’s actions.

Will There Be a Will Contest?

Some beneficiaries (or others who feel they should have been beneficiaries but were left out of the will) may initiate a legal proceeding called a will contest. They may try to invalidate the will based on one or more of the following arguments:

• Deceased failed to follow the proper legal formalities when signing the will.
• The will was written:
  • based on fraudulent issues.
  • under the undue influence of a specific beneficiary.
  • under duress.
• The deceased did not have the mental capacity to write their own will.

These issues tend to require a long court trial to sort out.

What If There Is No Will?

If the decedent failed to leave a will, the probate court will handle the entire process itself, step by step. The court will appoint the executor and will follow Indiana state guidelines for determining the beneficiaries and how much each receives. No matter how simple the estate, it will take longer than normal to execute than if a will were available.

Is the Estate Taxable?

Although the state of Indiana currently has no estate or inheritance taxes, you may have to worry about Federal estate taxes if the estate has a value in excess of $11.18 million. The IRS must then issue a closing letter revealing the estate taxes due before the probate can close. This can take up to eight months.

There’s another sticking point: if the deceased owned property in D.C. or one of the 14 states that still levy estate taxes, this may slow the probate as the other state makes its assessment and estate tax demands.

How Long Does Probate Take? An Indiana Probate Lawyer Can Help Speed Up the Process

Probate doesn’t have to take long if the estate is small and uncomplicated. Even if it’s larger, as long as the executor does their job efficiently and the beneficiaries don’t fight over the will, expect the probate process to last only a few months. Sometimes the IRS or other taxing entities outside Indiana can lengthen that process. If someone contests the will, expect the probate to take over a year.

If you have difficulties obtaining a bequest or executing a will, you’ll need help from an experienced probate attorney specializing in probate matters. Contact Barnes Cadwell Law today.

Avoiding one more legal procedure during a difficult time of your life can be comforting. To learn more about probate and how an attorney can help, contact Barnes Cadwell Law today.

Does It Matter Whether There Is a Will or Not?

It doesn’t really matter whether the deceased left a will or not. Even if the deceased left a valid will, the estate may have to go to probate anyway. Reasons for this include the need to halt the proceedings so that:

• A judge can determine if the will is valid.
• The court can identify and appraise the properties.
• All creditors and taxes are paid.
• All relevant people receive proper notification.

However, in the state of Indiana, estates that fall under a certain value level are defined as “small estates” and may not require probate at all.

Assets That Don’t Need to Go Through Probate

Indiana assets that don’t have to go through probate include:

• Items owned in joint tenancy (by two or more people), including bank accounts and real estate
• Community property with right of survivorship
• Beneficiary designations on life insurance or retirement accounts
• Payable-on-death bank and brokerage accounts
• Transfer-on-death bank and brokerage accounts
• Property defined by and held in a living trust.

Often, small estates consist entirely of such assets, especially for individuals married for a long time and co-owned property with their spouses. Most goes to the spouse automatically.

Determining If You’re Dealing With a Small Estate

If you’re lucky, you can escape expensive probate proceedings altogether. First, though, you need to know what constitutes a “small estate” in Indiana.

Most states don’t count items in the previous list that don’t go through probate toward the official value of the estate. In some states, the small estate value is as little as $15,000. In others, it may be up to $100,000. Ultimately, the total value of the estate including those non-probated items may be substantial, but it can still count as a small estate.

These rules of ignoring living trusts, joint tenancy, beneficiary, and pay-on-death/transfer-on-death items apply to estates in Indiana, which has a $50,000 small estate limit.

Small Estate Alternatives for Probate in Indiana

Small estates qualify for simplified probate procedures, which makes clearing the estates much easier and less expensive than for larger ones. If the gross value is below $50,000, all you have to do as executor is to file some forms and wait a specified length of time. (This total value does not include liens or encumbrances). Once you’ve made a list of assets of items that will pass to heirs or beneficiaries according to the will or state intestacy laws, you can proceed.

You can do this in two ways:

Claim Property With Affidavits

All you need in this case is a simple affidavit from each of the people who have inherited property. An affidavit is a sworn statement signed by the inheritor and a notary. Basically, all it has to say is that the heir or beneficiary is the person meant to inherit the asset and that there will be no probate proceedings due to small estate rules. The inheritor then presents the affidavit to whoever has custody of the property in order to claim the asset.

The waiting period for Indiana is 45 days for most assets, but only five days for motor vehicles or watercraft (per IC 29-1-8-1).

Claim Property Using Summary Probate

Summary probate requires you to fill out a few fill-in-the-blanks forms you can get from the court. Just file them, show the court you’ve paid all relevant taxes and debts, and you can close the estate, immediately disbursing the assets to the heirs and beneficiaries (per IC 29-1-8-3).

When Is Probate Not Necessary? Ask an Indiana Probate Lawyer

Are you executing an estate in the Indianapolis Areas, and wondering if you can avoid complex, costly probate? Call Barnes Caldwell Law today.

What Assets Pass Through Intestate Succession?

Any assets that the individual owns alone are passed through intestate success, the same way they would if the person had a will. In other words, assets that are held in the person’s own name.

There are some assets however that would not be subject to intestate succession. These include:

• Property that has been transferred into a trust. Property transferred into a trust would be distributed in accord with the terms of the trust. Many people prefer to distribute their valuable assets this way and there are a number of excellent reasons to consider this as an alternative to passing everything through your will.
• Life insurance policies. Life insurance policies are paid directly to beneficiaries. They do not pass through probate.
• Retirement accounts. Monies or assets that are held in a 401k or IRA are transferred in accord with the policy’s terms.
• Property owned jointly with someone else. Property you own jointly simply defaults to a living co-owner’s possession.

One final class of property would not be subject to intestate succession. That is any property that has a transfer-on-death (TOD) deed associated with it. This includes real estate, bank accounts, vehicles, securities, and other valuable assets or property.

Who Gets What Property When the Deceased Doesn’t Have a Will?

This is where it gets interesting. In the introduction, we referred to this process as an “algorithm”. That does a fair job of describing how intestate succession works. It depends entirely on which relatives are still alive when the individual dies.

For instance, if the deceased’s spouse is dead but they have living children, then the children get everything. If the spouse is still alive but there are no parents or children, then the spouse gets everything. If the spouse is still alive and there are living children, then the spouse and the children split your estate 50/50.

It gets more complicated from there. What happens if a person dies, leaves a living spouse, but has children from a previous marriage? The spouse then would keep 50% of the deceased’s personal belongings and 25% of the fair market value of any real estate. The children would get everything else.

Ok, but what if there are no children, one spouse, and living parents? Then the spouse would get 75% of the deceased’s property while the parents would get 25%.

But what if there is no spouse, no parents, and no children? Then the siblings would get everything. If there are no siblings, then the state would search for cousins, uncles, aunts, or anyone else who is even remotely related to you.

In extremely rare situations, the individual dies with literally no blood relatives and no will. What happens to their property? The state gets it. This is called escheat. Instead of leaving the property “unowned”, the state takes control of it. If any heirs were to step forward — even years later — the property would be transferred to them.

Some Intestate Succession Laws Are Antiquated

The laws of intestate succession are very old. The term escheat is a historical term dating to the feudal era. There are still some Indiana laws that don’t make a whole lot of sense in the modern age. For instance, if a man fathers a child to a mother with whom he was not married, the children can only claim property upon his death in certain circumstances. Those are:

• The father later marries the mother and acknowledges the children as his own.
• The father signs an affidavit affirming that he is indeed the father of the child.
• Court establishes the child’s paternity as the deceased father and the child is under 20 years of age.
• The child was born after the father died, but the court was still able to establish the child’s paternity so long as the petition is filed within 11 months of the father’s death.

Barnes Caldwell Law Can Help You Draft a Will

There are a number of things that you can do to avoid the confusion of intestate succession. Call the Indiana probate lawyers at Barnes Caldwell Law and we can begin discussing your options today.

Intestate succession is triggered when a deceased individual’s estate enters probate without a will or when a will is determined to be invalid and there is no other will to replace it. In the case of intestate succession, the court would assign an executor.

The probate attorneys at Barnes Cadwell Law can help see that your interests are noted and taken into consideration when the deceased’s assets are distributed. In addition, we can help executors with the process of distributing the deceased’s assets. We can address your concerns and help you ensure that the court administers your loved one’s assets properly.

Benefits of Probate Without a Will

Believe it or not, there are some benefits to entering probate without a will. Some of those benefits include:

• Creditors. When there’s no will, creditors have less time to file a claim against an individual’s estate. In some instances, they will have as few as three months after which they will lose their chance to file claims against the deceased’s estate forever.
• Resolves disputes. When heirs squabble over assets it can make the process of grieving over your loved one that much more painful. Intestate succession is basically an algorithm that determines who gets what. This involves choice, and there is no way to contest it. The algorithm determines who gets what property.
• Transfers the title of a home or other real property. Probate will painlessly transfer the title of real property to an heir unless the property is held jointly or held in a trust.

Starting Probate Without a Will

When your loved one dies, someone needs to oversee the process by which their assets are distributed. There are two options. Either someone close to the loved one can oversee this process, or the loved ones can enlist the services of a professional fiduciary. While the latter option is more expensive moneywise, the former option is more expensive timewise. There’s no correct answer for your situation. It merely depends on whether or not anyone is willing to take up the role of executor.

Filing a Petition for Administrator

Those who want to conduct the administration of the deceased’s property themselves must file a petition with the court. If the estate is small enough, it may qualify for an exemption from probate. In that case, the administrator would need to produce an overall value of the estate with an itemized list of assets that will be distributed.

Where the Probate Will Take Place

Generally speaking, probate can take place in any number of areas. If the deceased owned property in multiple states, it may need to pass through several probate courts. The primary court for personal property will generally be the county in which their primary residence was located.

Death Certificate

Those who wish to petition the court to act as administrator will need to provide the court with a certified copy of the death certificate of the deceased. The forms are called the Petition for Letters of Administration. When you file this document, you are asking the court to appoint you as administrator of the deceased’s property.
You will also need to provide the names and addresses of any potential heirs.

Notice of Petition to Administer Estate

When these forms are complete and filed, you will need to inform potential heirs that you are petitioning the court to administer the deceased’s property. Direct family will need to have this notice sent to their homes. In addition, you will need to place an ad in a local newspaper with a large distribution size. This notice serves not only to inform interested parties but creditors as well. Creditors generally have 4 months after the first notice is posted.

Contact a Probate Attorney for More Information

Acting as the administrator of an estate can be a time-consuming process. There are forms to fill out and deadlines to meet. One mistake and you can end up being held personally responsible. Therefore, many of those who administer estates retain the help of the skilled probate attorneys at Barnes Cadwell Law. We can help answer your questions and settle your concerns. Call us today.

If you need help with your probate matters, speak to a probate attorney at Barnes Caldwell Law today.

Beginning the Probate Process

If no executor is named in the will you can ask the court to consider you as the executor. In order to do that, you will need to file the request alongside a death certificate, and the original will with the probate court.

The petition will include the date of death alongside potential beneficiaries in the will. In Indiana, you can find all the forms that you require here.

The First Hearing in the Probate Process

The court will schedule a hearing. If others object to you as executor they will have a chance to voice those objections here. Prior to the hearing, you are required to send a formal notice to each of the beneficiaries or those who stand to inherit under intestate successful when no valid will is available. You must also send notice to any creditors and publish a notice in a newspaper.

In the majority of cases, your request is approved without being contested and the court authorizes you to act on behalf of deceased’s estate called Letters of Authority or something similar.

Posting a Bond

At this point in the probate process, the court may ask you as executor to post a bond. The bond is an insurance policy against losses suffered to the estate by executor mismanagement. Many wills explicitly state that no bond is necessary. If the will does not mention bonds one way or the other, it’s up to the judge’s discretion whether a bond is required.

Generally speaking, the larger the estate is, the larger the bond required.

Proving the Validity of the Will

The next step in the probate process is proving the validity of the will. Under ideal circumstances, an executor need only produce a notarized statement from the individual who is listed as a witness on the will. In other cases, a witness will need to produce an affidavit. Failing either of those, the witness will be brought to the court, sworn, and testify to the validity of the will.

If the will is uncontested, you can move on to the next step.

Managing the Estate Property

At this point in the probate process, the probate case is still pending. The executor can, however, begin gathering the deceased’s assets. The executor should also set up a bank account in the estate’s name that will be used to pay off creditors.

At this point, you can submit a list of the deceased’s property to the court and have assets appraised. You will very likely need the court’s permission before selling off assets, however, unless the will authorizes the executor to settle debts and liquidate assets without the court’s approval

Distributing the Deceased’s Assets

Once enough money has been set aside to pay off debts or unpaid taxes, the executor may proceed to the next stage of the probate process. If this money has been set aside, the executor is cleared to begin distributing some of the assets to heirs and beneficiaries. There may be a limit on the amount of money that you can distribute heirs before the court has looked over the paperwork.

There are some kinds of property that it makes sense to distribute immediately like cars and real estate, for instance.

After the estate has paid creditors and the government, the executor can proceed to distribute all of the deceased’s assets. Once the estate is closed you are released from duties assigned to the executor.

You will need to submit an accounting of what has been distributed to whom to the court. It will also show proof of payment to creditors and proof of taxes paid to the government.

We Can Help You With the Probate Process

If you need help managing a loved one’s estate or guidance throughout the probate process, contact Barnes Cadwell Law today. We can help you through each of the steps involved.

What Is Probate Property?

Probate property includes all assets that a deceased person owned at the time of their death. That includes money, real estate, houses, vehicles, jewelry, art, bank accounts, and other personal items. These items must go through the probate court process to transfer ownership when a person dies.
The only property that is excluded is that which is immediately transferred to someone else upon death, such as:

• life insurance proceeds,
• money in certain types of trusts,
• retirement accounts with beneficiaries,
• transfer-on-death deeds, and
• payable-on-death bank accounts.

If property is considered “non-probate,” then it does not have to go through the probate court process. This reduces the amount of time it takes to transfer ownership of assets after the death of an individual.

What Is a Personal Representative of the Estate?

To begin the probate court process when a person dies, the person who has possession of the will may file a petition for probate with the county probate court where the person lived or owned real estate. The person who possesses the will is often named the executor of the estate, or a different individual may be named in the will. If anyone objects to the naming of the executor or personal representative of the estate, then the probate court process will determine the wishes of the deceased person. If the wishes of the deceased person are not clear, the court may name a personal representative.
The personal representative is responsible for the following:

• handling the decedent’s assets,
• distributing property,
• paying of debts,
• and filing and paying taxes out of the estate.

This part of the probate court process can be complex. A personal representative may seek legal guidance to help with this process. Barnes Cadwell Law has the experience necessary to help you effectively represent the estate of your loved one.

The Probate Court Validates the Will

One of the first steps of the probate court process is to validate the will. The court will work to determine if the will presented is real and created by the deceased person. In most cases, wills are self-proving, which means the person signed, notarized, or otherwise validated them prior to death. However, if someone challenges the will, the court will seek to validate it by searching for witnesses, legal representatives, and others who may have knowledge of the will or the deceased person’s wishes.

Supervised vs. Unsupervised Administration of the Estate

The personal representative must administer the estate of the deceased person. The probate court process may involve either supervised or unsupervised administration. In most cases, the court allows the personal representative to handle matters without interaction from the court in an unsupervised administration. However, if there are any challenges to the will, the court may order supervised administration, which involves periodic reporting and legal interaction.

The probate court process of supervised and unsupervised administration of an estate can be difficult. It’s best to seek legal assistance to carry out these duties. Barnes Cadwell Law can make sure that you address all aspects of the will. We can also take care of all responsibilities as a personal representative.

Challenging the Probate Court Process

There are many steps of the probate court process that you can challenge. If you have concerns about a will, a named personal representative, or the way in which your loved one’s estate is being administered, we can help. You should immediately challenge the situation with the probate court to make sure that your loved one’s wishes are being carried out according to their plans.

Contact Us About the Probate Court Process Today

If you have questions about what happens to property and other assets when someone dies, contact Barnes Cadwell Law for a consultation today. We will walk you through the probate court process and help you understand the situation. Call us at (317) 804-5058.

What Is a Living Will?

A living will gives direction to your health-related desires in the event that you are in a situation where your life may be nearing an end and you cannot make that decision for yourself. It is the document where you give direction to not prolong your life under certain circumstances. A living will is often referred to by other names. People sometimes refer to it as a health directive, physician’s directive, advance directive and durable power of attorney. No matter what it is called, it is something that requires much thought and consideration.

Is a Living Will Right for You?

A living will is your directive that you do not want your life to be prolonged if you are in a comatose or vegetative state and where the doctor has determined that there is little chance of recovery. That is certainly not everyone’s desire. If it is not yours, there is no need for one.

When you are admitted into a hospital, they will likely ask you about whether you have a living will. If it is your wish to not continue your life in such circumstances, then a living will is the mechanism to makes your desires be known and followed.

What You Should Include in a Living Will

Designate an Agent to Act on Your Behalf

One of the key components of your living will is the person that you designate to act as your agent. This person, be it a family member or friend, must clearly know your desires. The living will will state under which circumstances you do not wish to prolong your life. You will have to have a serious discussion with that person as to your wishes.

There are occasions where that person might think that he or she is making a life altering decision rather than just following your directive. That person needs to be able to communicate with your medical provider at what could be a very emotional time. You should also designate another person to act on your behalf if the first person is unable to do so when the time comes.

Whether or Not You Want Your Life Prolonged

The most important part of your living will is the clear instruction that if you are in a comatose or vegetative state, you do not want your life to be prolonged. You make it clear that you do not want life-sustaining or death-delaying treatment to be provided or continued. That is, if your agent believes it would not be in your best interest based on what you have told him or her to do in this situation. You clearly state that you desire to have both nourishment and hydration procedures withheld or withdrawn and that you be permitted to die.

Decisions About Treatment or Hospitalization

You can also include other duties for your agent apart from communicating the decision concerning the extension of your life. He or she can be given full authority to make medical decisions short of life or death determinations. Your agent can also be given the authority to make decisions concerning your medical care and treatment or your hospitalization. The agent can be given the authority to have you admitted into a nursing facility. If necessary, your agent can authorize an autopsy of your body. If you are not in a position to speak with your agent concerning your care and treatment, he or she may make a decision based on what would be in your best interest.

You can authorize your agent to take any action to become the guardian of your person. This is often a designation that needs to be officially confirmed by a court. There may be some aspects of your care that will call for an official guardian to be in place. Your living will can make it clear who you desire to carry out that responsibility.

Availability of Your Medical Records

Medical privacy being what it is, your living will should address the availability of your medical records by your agents with particularity. It should state that your agent should have full access to all of your medical records and information. This includes any opinion as to your health or health care. This authorization would include insurance and financial information. For many reasons, medical professionals are very careful with the disclosure of a patient’s information; therefore, your living will should be very clear in connection with whom you authorize its release. It is a crucial factor in your agent’s ability to serve you well.

A Will Attorney Can Help You Make Sure You Observe All of the Formalities

Your living will is obviously a very important document. It gives directives to health care professionals that will often be communicated to them by someone who is not their actual patient. They will understandably, for many reasons, want to be totally confident that your consent, via your living will, is freely and voluntarily given. Toward that end, make sure that you have no fewer than two people who witness your signing the document. In addition, a notary public should witness all of the signatures and affix his signature and seal to the document. You don’t want your wishes or your care to be compromised by a document that has not been properly executed.

The purpose of a living will is to delegate important life and death decisions to someone else. There are both practical matters to consider and emotional ones, too. Once you sort through all of the considerations and finalize the document, you will feel relief and satisfaction that this part of your overall estate plan is in place.

Contact an Estate Planning Lawyer Today

For more information about wills, trusts, probate, and other estate planning issues, contact Barnes Cadwell law today.

1. Drafting Your Will

You can Google do-it-yourself will templates, but if your Last Will and Testament is not iron tight, it could be declared invalid. Your attorney can ensure that your will clearly states your wishes so it can be properly executed.

2. Minimizing Conflict

It is a well-known fact that money can bring out the worst in people. And when the terms of a will is less favorable than an heir may desire, conflict may arise during the probate process. Your probate lawyer can help reduce strife and facilitate a more fluid probate process for all of those involved.

3. Safeguarding the Estate Against a Legal Claim

Legal claims against an estate are frequent. Whether it’s a creditor or a will contester, the probate process is a magnet for avaricious people. By retaining an attorney to assist with the probate process, you also gain protection to ensure the decedent’s last wishes are respected.

4. Expediting the Process

The probate process can be long and tedious, especially with an inexperienced executor at the helm. While there is no magic formula to instantaneously bring a conclusion to the process, a knowledgeable probate lawyer can provide invaluable insight. Your attorney can also help decrease the impact of the many challenges that may occur during the process.

5. Answering Your Probate Questions

The probate process has multiple layers and is often complex. The confusion may be magnified by the raw emotion from the death of a loved one. If proficient probate attorney can educate you on the process so you know what to expect.

6. Dealing With Technical Details and Court Filings

Court filing is amongst the many duties and responsibilities an executor of an estate must fulfill. Your probate attorney can help ensure the paperwork is properly draft and filed, and can explain the finer technical points to you.

7. Ensuring the Estate’s Debts Are Properly Paid

An executor would not want to see the released inheritances be eaten away by creditors with unsettled debts. Your probate attorney can help you settle the estate’s debts within the specified timelines so there are no delays.

8. Handling Specialty Needs

You may find the need for specialized skills, such as appraising assets (art, jewelry, property), or accounting of probate activities. You probate attorney can help resolve the various legal issues that arise during the probate process.

9. Protecting the Executor’s Interests

As the executor, your personal interests may also be at risk if your mistakes cause the beneficiaries losses. Your probate attorney can help you make sound choices to reduce the potential for mistakes.

10. Relieving Stress and Simplifying the Probate Process

The complicated and long drawn-out probate process is necessary to settle debts and disperse assets. The good news is that you can rely on the expertise of a seasoned probate lawyer to streamline the otherwise complex process.

Contact a Probate Lawyer Today

If you wish to plan your will or if you are an executor who needs to probate an estate, or for other estate planning needs, then call an experienced probate lawyer with Barnes Cadwell Law at (317) 804-5058.