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 the deceased person owned in their name alone must go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up the “probate estate.”
Here are common kinds of property that are NOT part of the probate estate:
Property held in joint tenancy: A home, bank account, or other asset held by more than one person does not go through probate. When one owner dies, the survivor automatically owns the property. Learn more about avoiding probate with Joint Ownership.
Property held in tenancy by the entirety: If the deceased person owned real estate with their spouse in tenancy by the entirety, the surviving spouse is automatically the sole owner.
Payable-on-death bank accounts: A payable-on-death account is a bank account that passes to the POD beneficiary, without probate, at the account holder’s death.
Assets registered in transfer-on-death form: Indiana residents can name transfer-on-death (TOD) beneficiaries for securities and vehicles. Assets registered in the TOD form pass directly to the named beneficiary without probate. Learn more about TOD registration for Securities and Vehicles.
Real estate transferred by a transfer-on-death (beneficiary) deed: In Indiana, an owner of real estate can execute and record a TOD deed; this lets the property go directly to beneficiaries without probate. Learn more about TOD Deeds for Real Estate.
Life insurance proceeds: When life insurance policies or annuities specify a beneficiary, the proceeds do not go through probate.
Retirement accounts. The funds in retirement accounts do not go through probate if the account holder is designated a beneficiary. For more on this, see Retirement Accounts and Estate Planning.
Living trust assets: Assets held in the name of the trustee of a living trust.
Alternatives to Probate for Small Estates
Indiana provides a few alternatives to full-blown probate if the probate assets are under a certain amount.
A small estate affidavit process. Suppose 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). In that case, those who inherit personal property (anything but real estate) from the deceased 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 streamlined process is discussed more below.
Learn more about Indiana’s probate shortcuts.
Avoiding Probate in Indiana
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.
Who’s in Charge of the Probate Process
The Executor Named in the Will
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 executor. (Proceedings are conducted in the county where the deceased person lived or, if the dead person wasn’t an Indiana resident, where they 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 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
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.