Indiana Wills, Trust, and Probate

A well drafted will is imperative when preparing for life after your death or incapacity. Ensuring that your family and loved ones are taken care of is a thought that crosses all of our minds, regardless of your wealth or age. There are different vehicles to consider when thinking about the future of your estate, including a will, trust, or the probate process. If one does not create an estate planning mechanism before death, he or she will leave the distribution of his or her property up to a court. To ensure that your estate planning mechanism is in compliance with Indiana law, consult an Indiana estate planning attorney before creating a will or trust.

Indiana Will

There are two types of wills in Indiana. These two types have a few different requirements in order to create a legally valid will in Indiana. These requirements include:

1. Non-hand-written will – A will that is not in your own handwriting (e.g. typed will) must include:
1. Competent person: must be at least 18 years of age or older and of a sound mind (mentally competent).
2. Writing: the will must be in writing.
3. Signature: the testator (the person whose will it is) or another person who is in the testator's presence and is acting under the testator's direction must sign the will.
4. Witnesses – the will must be signed by at least two adult (at least 18 years old) witnesses within a reasonable period of time after they witness the testator sign the will or acknowledge the signing of the will. A witness can also be a beneficiary under the will.

2. Nuncupative will—a will made by someone in imminent peril of death and who dies as a result of the impending peril. This type of will is limited to distributing personal property to not exceed $1,000. In addition to these prerequisites, a nuncupative will must include:
1. Writing: the will must be put in writing within 30 days by or under the direction of one of the witnesses.
2. Signature: the will must be signed by the testator.
3. Witnesses: two disinterested witnesses must observe the testator declare the will has his or her own.
4. Probate: the will must be submitted to probate within six months after the testator dies.

Changing a Will in Indiana

Indiana law allows one to change his or her will in the following ways:

1. The creation of a subsequent will that revokes the initial will.
2. Destroying or otherwise mutilating the will.
3. Invoking an amendment or codicil.
4. Divorce or annulment of a marriage will revoke all provisions in the will pertaining to the former spouse.

In regard to revocation of a traditional non-hand written will, the above four ways apply. In order for any of these ways to be effectively utilized, the testator must have the intent to revoke the original will through the act.

In regard to revocation of a nuncupative will, revocation can only occur by the creation of a subsequent nuncupative will.

To ensure that you successfully create and/or change a will, it is imperative that you consult an Indiana wills attorney.

Indiana Trusts

Another estate planning tool used in Indiana is a trust—an alternative and effective way to distribute your property according to your specific wishes. This tool is used to transfer assets to a beneficiary, but will do so by initially transferring the assets to a trustee (a third party). The trustee has a number of responsibilities, including ensuring that the deceased's assets are safely and responsibly taken care of until the assets are eventually transferred to the original beneficiary. A trust is not enforceable in Indiana unless there is evidence in writing of the terms and the creator's signature or his or her agent's signature.

There are several different kinds of trusts recognized under Indiana law, including a life insurance trust, trust for care of animal, charitable trusts, and non-charitable trusts. The variety of trusts allows one the flexibility to distribute his or her assets in a way that saves taxes while simultaneously serving one's wishes in the exact time and manner he or she wants to distribute assets. As always, consulting with an Indiana trusts attorney will ensure that you are using the trust mechanism effectively and in compliance with Indiana law.

Indiana Probate

Upon death or incapacity, one's property will be distributed to those that are listed in his or her will. If there is no will or other document regarding property distribution, Indiana's intestate succession law will govern the distribution of one's property or assets.

Under Indiana law, potential beneficiaries include (non-exclusive):

1. Spouses
2. Descendants – children, grandchildren
3. Parents
4. Brothers and Sisters
5. Grandparents
6. Uncles and Aunts

There are a couple notable provisions regarding intestate succession. In regard to children, children born out of wedlock are treated the same as children born to married parents. Additionally, an adopted child may inherit as if the child had not been adopted. In regard to a beneficiary who is related to the deceased through two lines of relationship, such a beneficiary would only be entitled to only one share of the deceased's property, albeit he or she would be entitled to the larger share. When going through the probate process, many questions or concerns can arise. As such, one should consult an Indiana probate attorney to have his or her probate concerns addressed.

Indiana Statutes

1. Wills
1. Indiana Code, Tit. 29, Art. 1, Chp. 5, §§ 1 – 9
2. Trust
1. Indiana Code, Tit. 30, Art. 4, Chp. 1 §§ 1 – 13
2. Indiana Code, Tit. 30, Art. 4, Chp. 2 §§ 1 – 19
3. Probate
1. Indiana Code, Tit. 29, Art. 1, Chp. 2 §§ 1 – 15