A Will is a probate document in the truest sense. When a person dies and owns property in their name only, a Will is the device by which you transfer property out of that person’s name to an heir. In Indiana the requirements for a will are as follows:
1. Must be in writing (see I.C. 29-1-5-1)
2. Must be signed by the testator (person making the will)
3. Testator must be 18 years of age and of sound mind
4. You must have two witnesses sign the will in front of you and each other
(Ind. Code 29-1-5-3)
5. Witnesses need to know the document they are witnessing is your will
As a probate document, your will can be used for more than just distributing your assets, but it can also appoint people to serve as guardian for your children as well as create trust for children that are small. As such, you should talk to an estate planning attorney to determine if a Will is the way to go for you.
A trust agreement, unlike a will, is a probate avoidance document. That is, a trust agreement allows a trustee (person making the trust) to transfer his or her property in title to a trust. This is done so that when that person dies their assets do not end up in the probate system. That is because their property is titled in the name of the trust rather than the individual themselves.
The Law allows for individuals to take advantage of numerous types of trustee agreements that can be used to accomplish a number of end goals including, but not limited to, probate avoidance, privacy of your assets and administration, asset protection, tax planning, special needs qualifications, and more.
How does a Trust work?
Although each type of trust is different and is used for different purposes, the typical purpose of the trust is the same: keeping your assets out of probate. A trust agreement allows an individual to transfer title of all of their assets (real estate, bank accounts, investments, vehicles, personal properties, etc...) to a document (the trust). This is important because, unlike people, a trust agreement does not die and thus will never end up in probate.
When an individual transfers their assets to a trust they can dictate exactly how their assets are going to be distributed and if there are certain conditions they want to see met before their beneficiaries receive any assets. This is helpful because it allows an individual to have more control as to what happens to their assets and allows them to keep these transactions private.
In certain circumstances, trust agreements can be used to shield your assets from tax ramifications, as well as government benefits. Although State and Federal law in this area is always evolving, a trust shows that the assets are owned by an irrevocable trust and thus will not be counted as an asset that is yours. This can result in tax liabilities or being declined for certain government benefits.
Having a loved one pass away can be incredibly difficult. In addition to dealing with the emotional loss of loosing a loved one, it's likely you will have to figure out how to carry on with things like finances, asset management, paying bills, and getting your loved one’s assets where they need to go.
Take the weight off of your shoulders and get a lawyer who understands the probate process. From the moment your loved one passes away, there are multiple deadlines and clocks that start. A lawyer can help you open an estate, walk you through the probate process, ensure that assets end up where the decedent intended them to go, and put you in a secured position to close the estate.
Although every estate is different, the basic principles of an estate administration are the same:
Inventory the Decedent’s Estate: If you have been named a personal representative your first job will be to create a list of every asset the decedent held in his or her name at the time they died. This is important because you have to be able to tell the Court, as well as the heirs, what assets are in the Estate.
File the Will with the Court: In Indiana, a will cannot be admitted to probate if it isn't filed within three (3) years after the decedent passes away. As such, you will need to have your attorney not only file a petition to open the estate but to actually file the will itself.
Create a list of all debts and creditors: you'll need to make a list of all debts and creditors the decedent had at the time of their death, as you will have to give those creditors notice the estate has been opened. By doing this, you start the clock for creditors to get their claims filed with the Court.
Pay Creditors: Perhaps you will get lucky and the decedent did not owe anyone any money at the time of their death, but in the event you get a creditor that files a claim in the estate, you will have to first make sure that the claim is legitimate and second to get the claim paid if it is.
Distribute assets: Our office always instructs our clients to not distribute assets until all of the creditors are paid. There is nothing worse than having assets distributed then having to go back to an heir to inform them that they actually have to give assets back because a creditor is demanding payment. As such, you will not want to distribute assets until all claims are paid.
Final Accounting: In Indiana, you will have to file a final accounting with the court in which your estate is administered in a supervised capacity. If the estate is administered in an unsupervised estate, you will just have to provide an accounting to the heirs but not to the Court.
Close the Estate: Although a number of issues can arise that would cause an estate to be open for several years, Indiana law favors getting an estate closed in a year, although you may get an extension you should try to get the estate through probate as quickly as possible.
The administration of an estate is going to be unique for every set of circumstances. However, one thing that each estate requires is that you seek a competent attorney who can not only guide you through the process but can also explain the process.