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Facts Regarding What is Probate, is Probate Required or Necessary, and Steps to Take When Probate is Necessary?

Have you ever wondered what probate is, and whether it is necessary if you have a will?  Many people have the assumption that if they have a will, they will not have to go through probate.  Unfortunately, that is not always the case.  There are different variables that may make it required or necessary to go through the probate process with a will.  Below the probate process for Indiana will be discussed and when probate is required.

What Is Probate?

Probate is a term that is commonly searched, as many people do not fully understand what it is.  The simplest way of explaining it is that probate is the legal process that is commonly done after a person passes away to assist in identifying and transferring a person’s assets per their wishes in a will, or if there is no will through the intestacy laws of the state.  The probate process, at times, can be a lengthy and potentially complicated process.  It can also have significant costs, so it is best to consult an attorney before proceeding through the probate process.

Is Probate Required and Necessary?

In many cases, probate is a required process after a person passes away in order for a court to assist in the process of distributing the assets properly and providing creditors the opportunity to get paid from the estate before the beneficiaries receive any benefits from the estate.

In Indiana, going through the probate process is required if the estate has assets of $50,000 or more.  If the assets of an estate fall below $50,000, there are options that can be used that do not require the probate process, which are a small estate affidavit under I.C. 29-1-8-1 or through simplified probate.  If a small estate affidavit is going to be used when assets are less than $50,000, the person inheriting property from the estate can prepare a small estate affidavit (the state has a form) after 45 days have passed since the person passed away.  The exception to the 45-day waiting period is for motor vehicles and watercraft, which allow for just a 5-day waiting period.  The small estate affidavit cannot be used for real estate property.  Additionally, probate would likely be required when a family member wants to contest a will as the court would be necessary in assisting with the contested issues.

Probate would not be required or necessary if there is property in a trust, as the property held in a trust is protected by the trust agreement and is separate from any property that would be remaining that may have to go through probate if it meets the amounts listed above.  Property that is held jointly by spouses, for example, would also not be required to go through the probate process.  One other example of an asset that would not be necessary to go through the probate process is life insurance, as a beneficiary is usually named under that policy.

Steps to Take for Probate?

Generally, the Executor listed in the will is the one that will begin the probate process by filing documents with the court to begin the proceeding either as a supervised or unsupervised administration.  Notice of the proceeding will need to be sent to any interested parties, and creditors will be notified through a publication in the newspaper of the probate proceeding so they can request to be paid if there are any debts that were left behind.  

The Executor will be in charge of providing and filing an inventory of the estate assets that will be managed, pay any taxes/debts, and distribute the remaining to the beneficiaries during the probate process.  Once all of that is completed, the probate proceeding will be closed.  The judge will also assist in any decisions regarding the estate and distribution if there are any questions or disputes.  

The probate process can be quite lengthy, and it is important for an Executor to consult with an attorney to assist with the probate process, as this is just a simplified explanation of some steps that occur.  An estate planning attorney, like one from Dickmann, Reason, Bogigian & White, can assist with understanding the responsibilities and the procedures that are involved in the process.