Indiana Post-Death Affidavit (IC 32-17-14-26 and IC 36-2-11-19)

Introduction

Key Things to Know

1. 1

   Indiana's statute gives this instrument no name. IC 32-17-14-26(b)(20) says the beneficiary shall file an affidavit and leaves it at that, and the phrase survivorship affidavit appears nowhere in the Transfer on Death Property Act. Recording it is how the county learns the owner died, which is why the statute opens the subdivision with the words for purposes of providing notice to the county.

2. 2

   Two counters, in a fixed order. The affidavit must be endorsed by the county auditor under IC 36-2-11-14 in order to be recorded, and only then does it go to the recorder of the county where the real property is located. IC 36-2-11-14(c) puts a five dollar forfeit on a recorder who records one without the endorsement, so nobody at the counter will waive it.

3. 3

   No death certificate is required. Across the full Transfer on Death Property Act the phrase death certificate appears twice and neither instance attaches to this filing: one is a definition of proof of death, the other lets a transferring entity rely on a certified copy. Bring certified copies for the bank and the assessor, but the statute does not make one part of this affidavit.

4. 4

   Five contents, and the fourth is the trap: the legal description, the date of death of the owner, the name and address of each designated beneficiary who survives the owner or is in existence at the death, the name of each designated beneficiary who did NOT survive or is not in existence, and a cross-reference to the recorded transfer on death deed. Forms written elsewhere ask only who took.

5. 5

   Filing late does not cost you the property, it costs you money. A failure to file, or a delay by the recorder in recording, does not affect the validity of the transfer. But until the affidavit is recorded the beneficiaries named in the deed and the estate of the deceased owner are jointly and severally liable for property taxes assessed under IC 6-1.1, for assessment years beginning with the year the owner died.

6. 6

   Where no transfer on death deed exists, IC 36-2-11-19(a)(1) is the route, and it behaves differently. It says an affidavit concerning the death of a party named in an instrument affecting real property may be recorded, so it is optional, and the recorder shall record it in the miscellaneous records. IC 36-2-11-19(b) then makes it receivable in evidence in any proceeding affecting the property and prima facie evidence of the facts in it.

7. 7

   The recording fee is statutory, not county by county: IC 36-2-7-10(c)(1) sets $25 for recording any deed or other instrument other than a mortgage, and IC 36-2-7-10(b) provides that these fees supersede all other recording fees required by law for the recorder's services. Pages larger than eight and one-half by fourteen inches cost $25 for the first and $5 for each additional. Whether the auditor charges for the endorsement is not stated in IC 36-2-11-14.

Indiana Requirements for Affidavit of Death

• County Auditor Endorsement, Obtained Before the Recorder Will Take It

  IC 32-17-14-26(b)(20) provides that the affidavit must be endorsed by the county auditor under IC 36-2-11-14 in order to be recorded. IC 36-2-11-14(a) names the endorsements that qualify: duly entered for taxation subject to final acceptance for transfer, not taxable, or duly entered for taxation as provided by IC 36-2-9-18. Two protections are worth knowing. IC 36-2-11-14(b) forbids an auditor from refusing to endorse an instrument because it was made under IC 32-17-14, and IC 36-2-11-14(c) makes a recorder who records one without the endorsement forfeit five dollars to the common school fund. Whether the auditor charges for the endorsement is not stated in IC 36-2-11-14, so call ahead.

• The Legal Description of the Property

  Required content (A) of IC 32-17-14-26(b)(20). Copy the legal description character for character from the recorded transfer on death deed rather than describing the property from memory, and add the street address and the parcel number so the auditor and the assessor can match it to their records. The auditor's endorsement step is a taxation entry, so the parcel has to be identifiable.

• The Date of Death of the Owner

  Required content (B). The date the owner died, as the death certificate states it. The date matters beyond identification here: the property tax exposure in this subdivision runs for assessment years beginning with the assessment year in which the owner's death occurs, so the year of death is the year the shared liability starts.

• Each Designated Beneficiary Who Survived, With an Address

  Required content (C) asks for the name and address of each designated beneficiary who survives the owner or is in existence on the date of the owner's death. Addresses are part of the requirement, not a courtesy, which fits the subdivision's opening purpose of providing notice to the county. Where the designated beneficiary is an entity rather than a person, the test the statute uses is whether it is in existence on the date of death.

• Each Designated Beneficiary Who Did NOT Survive

  Required content (D), and the one most often missed, because out-of-state forms ask only who took. Indiana wants the name of each designated beneficiary who has not survived the owner's death or is not in existence on the date of the owner's death. Name them. If every designated beneficiary survived, say that rather than leaving the item out, so the recorder can see the content was addressed.

• A Cross-Reference to the Recorded Transfer on Death Deed

  Required content (E). The affidavit has to point back at the recorded deed that made the designation, so pull that deed from the recorder's index first and take its recording date and its instrument number or its book and page. Without the cross-reference the affidavit is a statement about a death that is not tied to any designation on the record, which is the opposite of what the filing is for.

• A Notarial Act, Taken From the Right Statute

  IC 32-21-2-3(a) requires that any instrument to be recorded carry one of two notarial acts, an acknowledgment as defined in IC 33-42-0.5-2 or a proof, and IC 32-21-2-3(d) bars recording unless the instrument also meets IC 36-2-11. That is the source of the requirement, because IC 32-17-14-26(b)(20) is silent on swearing. Do not draft from IC 32-17-14-13: its acknowledgment formula, which mentions a notary or a disinterested witness, governs the document the owner signs while alive and not this affidavit.

• Names Printed and Matching in Four Places

  IC 36-2-11-16(c) lets an Indiana recorder receive an instrument only if certain naming rules are met. Subsections (c)(1) and (c)(3) require the name of each person who executed it, and of each notarial officer who signed it, to be legibly printed, typewritten or stamped immediately beneath the respective signature. Subsection (c)(4) is the strict one: the name of each person who executed the instrument must appear identically in the body of the instrument, in the acknowledgment or proof, in the signature, and beneath the signature. A middle initial in one place and not another is enough to cause trouble. Subsection (d) provides a cure, by recording alongside it an affidavit of a person with personal knowledge of the facts.