Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone--usually the surviving spouse or other close family member--authority to gather the deceased person's assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Conducting a probate in Indiana commonly takes six months to a year, depending on the situation. It can take longer if there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Only assets that the deceased person owned in his or her own name, alone, need to go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up what's called the "probate estate."
Here are common kinds of property that are NOT part of the probate estate:
If the probate assets are under a certain amount, Indiana provides a few alternatives to full-blown probate.
A small estate affidavit process. If the total probate estate is worth no more than $50,000 (for deaths before or on June 30, 2022) or $100,000 (for deaths after June 30, 2022), those who inherit personal property (anything but real estate) from the deceased person can prepare a simple affidavit (sworn statement) stating that they are entitled to certain assets. When the inheritor presents the affidavit and a death certificate to an institution possessing the property (a bank, for example), the institution will turn it over. (Ind. Code § 29-1-8-1).
Affidavit for real estate. You can also transfer title to real estate by filing an affidavit (known as a "passage of title affidavit," or sometimes as a "devolution affidavit") with the county recorder's office. (Ind. Code § 29-1-7-23.) The affidavit must be signed and recorded with the county recorder's office before a personal representative is appointed in the probate case, and the petition to appoint the personal representative is filed more than five months after the date of death. (Ind. Code §§ 29-1-7-15.1(b) and 29-1-7-23(f).)
A simplified probate process. Indiana also offers a simplified version of probate, known as administration without court supervision (or unsupervised administration). There are a few requirements the estate must meet. For example, the estate must be solvent (meaning it can't owe more money than it has), and the inheritors must all agree to the simplified probate. (Ind. Code Ann. § 29-1-7.5-2.) This simplified process is discussed more below.
Learn more about Indiana's probate shortcuts.
If probate seems like a lot of fuss, there are steps you can take during your lifetime to ensure that your property does not pass through probate at your death. For more details, see Avoiding Probate in Indiana.
Probate court proceedings begin when the person named in the will to serve as executor files the will and a document called a "petition for probate" with the probate court, requesting to be officially appointed as executor. (Proceedings are conducted in the county where the deceased person lived or if the deceased person wasn't an Indiana resident, where he or she owned real estate.)
If the will is "self-proving," no further proof of its validity is necessary unless someone challenges it. With a self-proving will, the witnesses who watched the will-maker sign also signed an affidavit (statement under oath), stating that the will-maker appeared to be of sound mind. If the witnesses merely signed their names to the will, then at least one of them must now provide a sworn statement or testimony about the will-signing. Ind. Code § 29-1-21-4
The court issues the executor a document called "letters testamentary," which shows the executor's authority over estate assets.
If there's no will, a family member can ask to be appointed as the "administrator" of the estate. In this case, the court issues "letters of general administration" rather than "letters testamentary." While the terminology differs when there's no will, the concept is very similar; a person is given the authority to handle the estate.
The executor or administrator are both referred to as the "personal representative" of the estate. The personal representative has the responsibility for gathering the deceased person's assets and taking care of them, paying debts and taxes, and ultimately distributing the estate assets to the people who inherit them.
The personal representative has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
The personal representative can request either supervised or unsupervised administration of the estate. As the name implies, the difference is the level of court involvement. With the more common unsupervised administration, the personal representative can wrap up the estate largely free of any need to report into or get approval from the probate court.
If the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state. That's called an ancillary probate.
Unsupervised administration is allowed if:
Generally, unsupervised administration is appropriate when there are no disputes—over the will's validity, for example—that need to be resolved by a court. Compared to supervised administration, fewer papers need be filed with the court, so it usually means lower lawyers' bills. Anyone who will inherit under state law (if there's no will) or under the will, however, can object to unsupervised administration if they want the court to keep an eye on the personal representative.
A personal representative who is using unsupervised administration can sell, mortgage, or lease real estate or other assets, and deal with inheritance and income taxes without getting the court's approval. Usually, the personal representative is not required to post a bond.
The personal representative must prepare an inventory of estate assets within 60 days of becoming the personal representative, with an estimate of each asset's fair market value. The inventory isn't filed with the court, but any inheritor is entitled to a copy. Within a year, the personal representative must file a closing statement—or an explanation of why one isn't ready—with the court.
Generally, a personal representative wouldn't seek supervised administration unless there's a good reason to want the probate court to weigh in. Attorneys' fees are generally higher than with unsupervised administration because more papers must be prepared and filed with the court. Court intervention can be a good idea if:
In supervised administration, the personal representative must file an inventory of estate assets with the court. The personal representative must also get court approval before selling real estate, vehicles, securities, or other estate assets. Getting that consent may require getting assets appraised or asking the beneficiaries' permission as well. After the estate is complete, the personal representative must file a detailed accounting showing the estate's income and expenditures (with supporting receipts and other documents).
Whether or not there is a probate court proceeding, the personal representative or whoever inherits the deceased person's assets outside of the will must use those assets to pay debts and taxes.
To find the names of creditors, the personal representative should go through the deceased person's financial records (tax returns, checkbooks) and ask people who are likely to know what debts the person owed.
If there is a probate court proceeding (unsupervised or supervised), a notice of the proceeding is published in a local newspaper and mailed to all known heirs (people who inherit under state law in the absence of a will) and creditors listed in the petition for probate. The personal representative must also mail known creditors a copy of the notice within a month after it's first published. Creditors have three months, after the date of first publication, to come forward to make claims against the estate.
It's also the personal representative's responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if the estate generates a significant amount of income.
Additionally, a federal estate tax return will be required if the deceased person's taxable estate is extremely large—for deaths in 2022, this means more than $12.06 million. More than 99.9% of all estates do not owe federal estate tax.
Until May 2013, Indiana had a state inheritance tax, which was imposed on certain people who inherit money from an Indiana resident. The tax was repealed.