Probate and Estate Planning

Our office handles a variety of probate and estate planning matters, including formal probate administration, small estates, contested litigation over Wills, Trusts, and Powers of Attorney, drafting estate plan documents, and assisting with certain non-probate transfers. Call us anytime for a free phone consultation to discuss your probate or estate planning needs.

FAQs About Estate Planning

What is a Will? Do I need one?

A Last Will and Testament (or "Will" for short) is a document that tells your loved ones (and a court) what you want to happen to your property when you die. Indiana has something called "intestate succession" which is a plan that the State of Indiana has created for people who die without a Will. In some cases, what you want to happen to your property is exactly what the Intestate Succession law would do. However, in many cases it is not. Writing a Will allows you to be specific about how you want to distribute your things when you're gone. It also allows for "contingencies" or back up plans, in case someone you love dies before you. A Will lets you designate who you want to be in charge of your affairs when you're gone. Finally, a Will allows you to place property into a trust when you die, in order to care for children and grandchildren that are not old enough or mature enough yet to manage their own inheritances. We strongly encourage you to work with an attorney to draft a Will that is uniquely created for you and your loved ones.

What is a Power of Attorney and Do I Need One?

A Power of Attorney ("POA") is a document that allows someone else to manage your affairs during your lifetime. A General Durable POA is usually effective immediately when it's signed, and gives broad authority for someone to make medical, financial and other business decisions for you. For this reason, it is critical that you choose someone who is trustworthy to act for you under a POA.

There are also Limited POAs which can be unique to a certain set of circumstances, or certain kinds of decisions and transactions.

It is often wise for you to have a POA, and we do encourage them in many situations. However, this is something that should be carefully discussed with a lawyer as it comes with a lot of power and responsibility.

What about a Living Will? What is that and do I need that?

A Living Will is a medical directive that is intended to be used only when you suffer from a medical condition and your doctors have said that there is no hope of meaningful recovery. In that circumstance, the Living Will conveys your desire to decline "life support" to your doctors and your family. Living Wills are not for everyone, but we are always happy to prepare one for you to review and let you decide if it's something you wish to have or not.

What is a Trust? Do I need a Trust? What type of Trust do I need?

A "Trust" (or more specifically a Trust Agreement) is a contract that allows someone you name to hold your assets for your benefit and/or the benefit of those you love. Trusts are "non-probate" assets (see below). The person that you name as "trustee" is a fiduciary, which means that they have a legal duty to you and to your beneficiaries to act in good faith, and to do the things they are appointed to do under the terms of the Trust Agreement. Like a Will, a Trust allows you to create a specific, unique, plan to provide for your family during your lifetime and after you die.

There are different types of Trusts. A "testamentary trust" is a Trust that is created in your Will. No assets are owned by the Trust until after you die. Those assets are then held and eventually distributed under the terms and conditions written in the Trust Agreement. A "living" or "intervivos" trust is a Trust that you set up while you are still alive. With this type of Trust, you will typically transfer all of your assets to the ownership of the Trust at the time it is first set up. Often with a Living Trust, you and/or your spouse will be the initial Trustees so that you retain some control over how your resources are used while you're still alive. There is then a secondary plan in the Trust Agreement that would direct how those resources are managed after you and/or your spouse have died.

A "revocable trust" is a Trust Agreement that you can change during your lifetime. With this type of Trust, you can even "revoke" or get rid of it completely. In contrast, an "irrevocable trust" is one that cannot be changed. Once you place assets into an irrevocable trust, they have to stay there, and they can only be used, managed, sold, or distribute under the specific terms in the Trust Agreement.

These are just a few of the main types of Trusts, but there are many others, including special needs trusts, credit shelter trusts, and asset protection trusts. You should always talk with a lawyer BEFORE you create or put any assets into a trust, so that they can help you to know which type of Trust will be best for you and your needs.

Want to Know More? Give us a call and schedule an estate planning consultation today. I would love to meet you and discuss how we might be able to plan for the future for you and your family.

FAQs About Probate

What is Probate?

Probate is a court process for handling someone's business affairs after they have died. A probate court can enter orders appointing an executor (or personal representative) to be in charge of the decedent's affairs. The Court can also enter orders allowing for assets to be sold or distributed to heirs. Finally, the court ensures that all of the decedent's financial responsibilities are met, including tax filings, payment of debts, collecting monies owed to the decedent, and paying for their final expenses.

What are Probate and Non-Probate Assets?

The easiest way to understand this is to first understand what non-probate assets are. These are assets that are transferred automatically when someone dies, under a contract, or beneficiary provision. Because they transfer automatically, there is no need for an executor to "probate" them or transfer them through the courts. Some examples would be life insurance policies or retirement accounts that have named provisions in place, joint banking accounts, assets that are held in trust, and property interests under a "transfer on death" deed. In contrast, "probate assets" are those assets that do NOT transfer automatically and must be "probated" through the Court.

What is a Small Estate?

Not every "probate estate" requires a full court administration. Indiana law allows families to avoid the formal probate process in cases where there are only a few probate assets and their monetary value is limited. In those cases, families can often transfer assets by a simple Affidavit. There are, of course, some rules that apply to this process:

1. The net probate assets (after deducting for debts that the family is paying, final expenses and burial expenses) are valued at less than $50,000.00.

2. You have to wait at least 45 days after your loved one dies before you can transfer assets by a Small Estate Affidavit.

3. There can't be a formal probate estate open for the decedent anywhere.

4. You have to list the heirs at law (under Intestate Succession) or the beneficiaries who are named in the Decendent's Will in the Affidavit.

5. You have to agree to use the assets first and foremost to pay the Decedent's debts and, if there is anything left over, you promise that you will distribute that to the beneficiaries named in the Decedent's Last Will and Testament or the heirs who are entitled to inherit under Intestate Succession.