Estate Administration & Probate Attorneys in Fort Wayne
When a loved one passes away, several questions come up: What happens to their house? Bank accounts? Life Insurance? What about bills they owed? Funeral expenses? What if the loved one didn’t have a Will? Figuring out what to do next, especially in the midst of grief, can be challenging. The Fort Wayne lawyers at Perry Law Office are here to help guide you through the probate (estate administration) process from start to finish.
What is Estate Administration?
It is the process of gathering and then transferring the estate of a recently deceased person. When a person passes any assets, belongings, real estate, etc., owned by that person at the time of their passing, become part of their “estate”. This can include real estate and all personal property such as furniture, antiques, vehicles, bank accounts, retirement plans and life insurance policies (if no beneficiary is listed), basically everything of value the person owned at death. Certain property can be titled in such a way as to avoid becoming part of a person’s estate: Real estate and bank accounts and other assets can be titled in joint names; Life Insurance and Retirement Accounts can have named beneficiaries; Contracts for real estate, real estate, and bank accounts can have transfer on death clauses.
If an estate is over $50,000 you must administer the estate through the court. Opening an estate is not a complicated process, it just requires specific documents to be filed with the courts. One of the most important things is getting the personal representative appointed. Any properly drafted Will would have named a personal representative. If a Will was not in place, then typically a family member will petition the Court to be named the personal representative.
When an estate is below $50,000.00 a simplified process can be used, and that is called a Small Estate Affidavit. The entire amount of all property and bank accounts of the deceased must be below $50,000 to use this process. There is no filing fee and no court involvement. The affidavit is presented to anyone that has property of the deceased, such as a bank that holds an account. Real estate can even be transferred this way if it’s value combined with other assets are below $50,000.
If your loved one had an estate plan, we can assist you in probating the Will and carrying out their wishes. If your loved one did not have a Will, we can explain to you how the Indiana intestacy laws work. We offer a low, flat rate for a small estate affidavit for estates valued at less than $50,000 and we try to keep your fees as low and reasonable as possible for estates, which require administration through the Court. Our fee is not based on a percentage of the value of the Estate assets like some other attorneys do. This process can result in disproportionally high attorney fees. Instead, Perry Law Office normally charges a flat fee of $3,500 for most estates whether the value of the estate is $75,000 or $750,000. Some estates have complications which could result in an hourly rate, but that will be discussed if it should occur.
Some people are fearful or leery of the word “Probate”. This really is not a scary term, it is the necessary process to officially prove or validate a Will with the Court. However, if you wish to avoid probate one way is to create a Revocable Living Trust. Probate is most commonly used as the generic term for when someone has a Will and now the Will and estate needs administered through the court. You have probably heard of Probate Court. This is a court that is specially designed to handle estate administrations and probating of Wills. For our purposes, we will follow the common use of the term Probate and explain that it is the process of validating the Will with the court, appointing a personal representative, starting the estate administration (opening the estate), and notifying potential creditors of someone’s death. In general, a Will gets probated and at the same time a petition (request) to appoint a personal representative (the person designated in the Will), and a petition to administer the estate (open the estate) are all filed at the same time. Every Will should be probated, but an estate is not always opened. You may open an estate/administer an estate whether the decedent has a Will or not.
In the case of a married couple who have mostly, if not all, of their property and assets held jointly and each has named the other beneficiary of any life insurance and retirement accounts, often it is not necessary to go through the process of opening an estate with the court upon the death of the first spouse. This is because all or most of the property transfers automatically to the surviving spouse, per contract, as the named beneficiary or by operation of law if the property was held jointly with rights of survivorship. Even though the opening and administering an estate is not necessary, the Will of the first spouse to die should be put on file with the Court, essentially just making the Will a public document. This is simple and Perry Law Office will do this for you for a flat fee of $225. This process is called probating the Will, and is not the same as probating an estate or opening an estate. It is important to “publish” the deceased spouse’s Will as that Will normally left everything to the surviving spouse. This could be important years later when the surviving spouse dies. Probating (filing the Will with the Court) of the first spouse to die is often overlooked. We recommend doing it, as it does not cost much and only requires the surviving spouse to sign one document that is filed with the Court, and there are no court hearings or other requirements. It is simply the process of putting the deceased spouse’s Will “of record” with the Court.
Estate Administration or Opening an Estate is a necessary process when a deceased person’s estate has a value of $50,000 or more. Generally, if there is a house and any other assets, an Estate will need to be opened. An estate, however, does not always need to be opened, but if there is a Will, it should always be probated. These terms are commonly confused.
Some people are surprised to hear that “probate”, really “estate administration” is not always necessary. If the estate is under $50,000, you do not have to open an estate with the court but instead, you can transfer the property in other ways. The most common is a Small Estate Affidavit, which is an Affidavit stating certain things, the most important is that the estate is under $50,000 and the person signing the affidavit is a proper heir and will act in the best interest of the beneficiaries/heirs of the deceased person’s estate.
- Fiduciary Duties of Personal Representative – Fiduciary implies great confidence and trust, and a high degree of good faith. The personal representative has the duty to ensure all assets are secured and then distributed appropriately.
- With or without a Will – If a person dies without a will, the state law determines how assets are distributed. As with any distribution, it only affects assets that would have passed through a will. Who will receive the deceased person’s (decedent’s) assets is determined by who their legal heirs are at the time of their death. For instance, if you die leaving a spouse, no children, and had a parent that was living, the spouse and parent would each get a share. The spouse does not always take everything 100%.
- Supervised vs unsupervised – This is one reason we find that you should not draft a Will online. While some “online” Wills are likely sufficient, you probably want your Will to direct your estate to be unsupervised. Unsupervised allows the personal representative to wrap up the affairs of the deceased with less court involvement. This in turn also reduces time, expenses and attorney fees. An unsupervised estate does not usually require court hearings or approval to sell or transfer assets, while a supervised estate does. There are times when it may be appropriate to request a supervised estate and our attorneys will discuss with you when that may be the better choice.
- E-filing requirements – In 2017, Indiana courts started transitioning to E-filing, where all attorneys must electronically submit all documents to the court as of January 2018. A party that is not represented by an attorney can still go to the court and submit documents in person. This may change as the Courts evolve further into E-filing. Eventually, most or all documents will need to be submitted electronically and all notices from the Court will be sent electronically.
For more information on Estate Administration and Probate, see our FAQ tab.
Contact a Fort Wayne Estate Administration Attorney Today
Contact the Fort Wayne Estate Administration attorneys at Perry Law Office today at (260) 483-3110 to discuss your questions.
When you do not need to open an estate?
- Small Estate Affidavit– If the entire estate’s value is under $50,000 this process can be used. To use this small estate affidavit process more than 45 days since the death must have passed, no estate is now or will be opened with the court, you must state the reason you are entitled to the property, and you must list the property/assets of the estate in the affidavit.
- Affidavit to Transfer Property without Administration– Transferring real estate through the small estate affidavit can be done, but the $50,000 rule still applies. However, the deed itself may require special language to properly transfer it.
- Jointly held property – This can be real estate, bank accounts, and other personal property such as vehicles. When property is jointly titled it automatically transfers to the survivor.
- Transfer on Death Documents/Clause – These are sometimes referred to as TOD (transfer on death). It’s a tool used to avoid estate administration. The real estate or personal property immediately transfers, on the death of the original owner, to the person named in the TOD document. This can be used for real estate, bank accounts, vehicles, or for other types of personal property. For real estate, the deed still has to be recorded like any other deed, but can be changed or revoked before the death of the owner.
How long does it take to go through probate?
Every estate is different, and it depends on a lot of factors, but generally, about four to twelve months is normal. Some estates can go on for a few years if there is a more complicated situation like an ongoing business with lots of loose ends, real estate that just won’t sell quickly because it’s unique, or litigation like a Will contest, etc. But Indiana law requires the personal representative to do their best to get things wrapped up within a year, so naturally, that is our goal when possible. There is a 90 day waiting period after notices given to creditors. Therefore, 3 months is the quickest an estate can be completed.
A few key terms that everyone should know when faced with Estate Administration:
- Probate has 2 meanings. The process of validating the Will (filing the Will with the Court) and the process of administering the Estate
- Estate – Any personal or real property owned by the decedent at the time of their death
- Estate Administration/Opening an Estate – is the starting point to comply with the wishes of the decedent or as required by law. An Estate can be opened whether there is a Will or not.
- Decedent – the person who has passed away
- Personal Representative (or Executor) – Can be named in a Will or if no Will exists be appointed by the court. A personal representative is charged with carrying out your wishes in your Will and distributing the assets. This person has a fiduciary duty to carry out the wishes of the deceased and to ensure all assets are accounted for and distributed appropriately. They are tasked with getting the death certificate, maintain and protect any property, collecting any bills and paying any debts, collecting and closing any bank accounts. They will work with the estate attorney to wrap everything up. In their petition to be appointed as the personal representative, the personal representative makes an oath that they will faithfully discharge the duties of a personal representative, according to all laws.
- Personal Representative Oath – A document filed with the court stating the person requesting to be appointed personal representative will carry out the duties of the personal representative in accordance with the law. This oath is very serious and failure to comply with all aspects of the law could result in personal liability on the personal representative.
- Indiana Intestacy Laws/Intestate Law – This is the law that applies when a person dies without a Will or Living Trust and it will determine who receives what portion of the decedent’s estate.