Schedule Your Free Personal Injury Consultation.
(812) 359-8007Call For An Appointment To Discuss Your Needs.
In this article, you will discover:
A “small estate” does not require formal probate administration through the courts. What is a “small estate?” In the State of Indiana, if the net value of an estate after the payment of liens, encumbrances, reasonable funeral and burial expenses, and the costs of administration, exceeds $100,000, then formal probate administration is required. If it is less than that threshold amount, then assets can be transferred via the “Small Estate Affidavit” under Indiana Code 29-1-8-3.
In every county of Indiana, the small estate affidavit process will be the same. You will present an affidavit to a third party who has possession of personal property belonging to the decedent. In that affidavit, you indicate that the decedent held funds or personal property with this third party and that pursuant to the laws in Indiana, the following person or people are entitled to possession of the property, which should be handed over to them. There are some additional hurdles, though. First, the affidavit must include a statement that no estate has been, or will be, opened. Additionally, it must identify who is entitled to possession of the funds or personal property, and finally, such an affidavit cannot be presented until forty-five (45) days have elapsed since the date of death (for all property other than motor vehicles) – or, five (5) days for motor vehicles and water craft.
The advantages of a small estate affidavit are the simplicity and timeliness of getting property transferred to someone who’s entitled to it under Indiana probate law. That statute will allow the BMV to issue a new title to the new “owner” (heir or beneficiary) five (5) days of the date of death and for the transfer of funds or possession of other personal property as early as forty-five (45) days after the date of death.
With formal probate administration, there’s a more lengthy process. You have to petition the court to open the estate so the clerk can issue “Letters” to the personal representative. The petition also requests the appointment by the court of a personal representative and for either the probate of a will or intestate succession administration of the estate assets.
Once the petition is filed, then a notice has to be published in the paper and distributed to the heirs and known creditors. These notices indicate that there is a three-month window during which any creditor can file a claim against the estate in court. After that three-month period passes, theoretically, you could distribute the assets, but any claims that are filed would have to be dealt with. Claims that are timely filed and undisputed will need to be paid. Claims that are not timely filed or claims that are disputed, will need to be denied. Once denied, the creditor can request a trial on the claim.
Often, estates aren’t ready to be administered after just three months because there is real estate to sell or transfer. With the small estate, on the other hand, you make an initial determination that there’s going to be an amount to administer: a net amount of less than $100,000. Therefore, formal probate administration, notice to creditors and a three-month waiting period are not required. The assets can be distributed immediately.
Attorney Thomas Scifres is a seasoned lawyer based in Salem, IN, who has helped countless clients like you navigate the intricacies of probate law. With decades of experience, he is prepared to assist you with your small estate affidavit or probate administration so that you can legally and properly administrate your loved one’s estate.
Still have questions? Ready to get started? Contact Thomas E. Scifres, PC today to schedule a free initial consultation.
There are occasions when formal probate administration isn’t required, but is still helpful. Formal probate can be especially useful when heirs disagree about using the small estate affidavit. However, this decision is up to the personal representative, not the heirs.
By opening the estate in court, you can accomplish a couple of things. First, everything is filed, nothing’s hidden, and everything is open for examination by the heirs. In short, everything’s transparent. Second, parties are able to ask the judge for direction, guidance, and a ruling when necessary.
Being legally and ethically transparent with the heirs while listening to and addressing their concerns minimizes disputes and the prospects of future litigation within the family. While this is not necessarily a legal goal, it’s a legitimate pursuit when you represent someone as an attorney.
There are several instances where someone shared information about the value of their estate with their family or beneficiaries. When they pass away, the family schedules an appointment with us about what to do next.
We ask about the scope of the decedent’s assets. While the clients do their best to tell us what they know, often they don’t know the full extent of the assets or how much debt there is. So, what would first appear to be an estate requiring formal probate administration could be well under the $100,000 net threshold.
Indiana law has a provision that the personal representative can file a motion with the court, recite those facts, distribute the assets, and distribute and file a closing statement without formal notice to creditors. That’s happened several times and can be quite helpful and efficient for the family.
For more information on small estate affidavits in Indiana, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (812) 359-8007 today.
Attorney Thomas Scifres is a seasoned lawyer based in Salem, IN, who has helped countless clients like you navigate the intricacies of probate law. With decades of experience, he is prepared to assist you with your small estate affidavit or probate administration so that you can legally and properly administrate your loved one’s estate.
Still have questions? Ready to get started? Contact Thomas E. Scifres, PC today to schedule a free initial consultation.
