In Indiana, at the time of death of the first spouse, and assuming that all property is jointly held by husband and wife, the real and personal property may be transferred to the surviving spouse by simple affidavit. At the death of the second spouse, in the event there is a net estate of $50,000.00 or greater and a revocable living trust has not been executed, the estate may need to be probated. Probate is the procedure whereby a petition is filed with the Court to open an estate, a personal representative is appointed, and notice is published in the local newspaper to notify potential creditors who may wish to file a claim against the estate. The personal representative then inventories the assets in the estate, debts and taxes are paid, and the Court eventually gives final approval. Depending on the type of probate that is filed with the Court, the probate process may take 4 - 6 months or longer, depending on various factors.
One way to avoid probate in Indiana is to execute a revocable living trust. A revocable living trust is a mechanism which allows you to set forth the beneficiaries of your estate, just as you would do in a will, but instead of holding title to your real and personal property individually, your assets are titled or placed into your trust. Many people name their trust, "The John and Jane Doe Family Revocable Living Trust" (insert your name). Your house and other real property are then transferred into your trust by deed, which I prepare. Your various bank accounts (CDs and stocks) are also transferred into your trust by changing the signature cards of all bank or brokerage accounts. Other mechanisms are utilized to transfer the remainder of your property into your trust, if necessary, so that at the time of your death, you have less than $50,000.00 of net assets in your individual name. In this way, you avoid probate.
By executing a revocable living trust, you control the disposition of your assets during your lifetime, as you name yourself as the trustee of your trust. This allows you to buy and sell and transfer assets both to and from the living trust during your lifetime. In this way, you control the trust.
By executing a revocable living trust, you avoid probate and the attorney fee cost associated therewith. (Although you are not required to hire an attorney to file a probate proceeding in Indiana, most people are unfamiliar with the probate laws and process.) A trust can result in a savings of several thousand dollars to your estate, and ultimately to your children or beneficiaries. Revocable living trusts do not avoid the requirement to pay Indiana Inheritance Tax - you will be required to file an Indiana Inheritance Tax Return regardless of whether you die with a will or trust, if your estate meets the threshold requirements.
Attorney Ned Tonner has drafted numerous revocable living trusts for various clients. Our firm offers a package for each revocable living trust, which includes the following document preparation:
Revocable Living Trust.
Power of Attorney.
Appointment of Healthcare Provider.
Living Will, involving medical decisions.
Deed work, depending on number of properties and location of same.
Please contact our office to schedule a consultation as to which trust is right for you.
In the event you are involved in a situation where there is a death and a probate proceeding is required, Attorney Tonner is available to represent the estate through the probate process. Additionally, we provide legal services to clients who are in need of a guardianship, in the event a loved one is unable to properly care for themselves. Please schedule an appointment with Attorney Tonner to discuss your options.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.
Back to top