Posts Tagged ‘probate’
I recently lost a loved one. I have been told that I may need to open an estate for her, but I have no idea where to start. What should I do?
First, before you begin to tackle the affairs of your loved one, take time to grieve with family and friends. Situations requiring immediate attention by surviving family members or friends are rare. Once you are prepared to take on the issue of the estate of your loved one, you should contact an attorney familiar with estates and the probate process.
During an initial meeting, the attorney should be able to advise you on whether or not it will be necessary to open an estate in the county court’s probate division. Depending on the size and nature of the estate and the degree of pre-planning carried out by the decedent prior to her death, it may or may not be necessary to petition the court for probate proceedings.
If the attorney determines that probate proceedings are necessary, the attorney can help you petition the court to open an estate and, in many cases, appoint a personal representative of the estate. (In some states, the personal representative is called an “executor.”)
The job of the personal representative is to pay all debts, expenses, and taxes owed following the decedents death, and then distribute the remaining estate as directed by the decedent’s will. If there is no will, the remaining estate is distributed according to the “rules of intestate succession,” which are statutorily prescribed rules governing who receives what from the estate where the decedent did not leave a will. The personal representative owes a fiduciary duty to the interested parties in the estate. In order to carry out the personal representative’s duties, he must collect and manage the assets of the decedent. This usually requires an initial investigation by the personal representative into what exactly the decedent owned at the time of her death. Often times, the full value of the estate is not known until the personal representative starts to really dig into the affairs of the decedent.
If you are appointed personal representative of your loved one’s estate, your attorney will guide you through all of the necessary procedures for administration of the estate. You will work closely with the attorney to make certain that the estate is wound up in an expeditious and appropriate manner.
Dying without a will is referred to as dying “intestate.” In the event that you die without have a valid will that instructs how your probate assets are distributed, the law requires that your estate be distributed according to the rules of “intestate succession.” In Indiana, these rules generally require that your probate estate be distributed as follows, depending upon your marital and family status:
Unmarried, no children.
• Everything to your parents and siblings.
• If you do not have living parents or living siblings, then everything to your nieces and nephews.
• If there are no living nieces and nephews, then everything to your grandparents.
• If there are no living grandparents, then everything to your aunts and uncles.
• If there are no living aunts or uncles, then everything to the State of Indiana.
Married, no children or grandchildren.
• Three-fourths (3/4) to your surviving spouse and one-fourth (1/4) to your surviving parent or parents.
• If there is no surviving parent, then everything to your surviving spouse.
Married, with children (or grandchildren).
• One-half (1/2) to your surviving spouse and one-half (1/2) to your children (and grandchildren, in some cases).
Married to second or subsequent spouse, with children from prior spouse, but no children from subsequent spouse.
• Your surviving spouse receives the equivalent of 25% of the fair market value of your real estate, minus the value of any liens or mortgages against the real estate.
Bear in mind, these are general rules and far from a complete schedule of rules of intestacy. Furthermore, there are other rules that may affect the ultimate distribution of your probate assets, such as rules concerning personal property and family allowances.
The rules of intestacy are designed by the Indiana General Assembly as a “best guess” of how you would have wanted your probate assets distributed. Because there is no will that sets out how you would have actually wished the assets distributed, the legislature has decided for you.
Making a will gives you the opportunity to dictate how your estate is administered and distributed upon your death.