Indiana Petition for Probate

Introduction

Key Things to Know

1. 1

   File in the circuit or superior court (probate division where one exists) of the county where the decedent was domiciled; for a nondomiciliary, any county where the decedent left property. The filing is a petition for probate of will and for issuance of letters testamentary, or for appointment of an administrator with the will annexed or an administrator (IC 29-1-7-5), and one petition may combine both. If your county court requires its own form, the court's form controls over any draft petition.

2. 2

   Nobody has authority over estate assets until the court appoints a personal representative and the clerk issues letters. A named executor must still be appointed. Do not distribute assets, pay heirs or sell property before appointment, or before the creditor claims period has run.

3. 3

   A will must be presented for probate before the latest of: 3 years after death; 60 days after an order denying probate of a previously offered will; or 60 days after an order revoking probate of a previously admitted will (IC 29-1-7-15.1). For deaths after June 30, 2011, if no estate was opened and an asset is still titled in the decedent's name, a will may be probated after the 3 years solely to transfer that asset. Real property cannot be sold to pay non-lien debts or administration costs unless the petition is filed within 5 months of death and letters issue within 7 months.

4. 4

   A will custodian may deliver the will to the court and must do so on written demand by the personal representative or court order (IC 29-1-7-3). An interested person can apply for a production order, and refusing without cause is contempt plus liability for damages.

5. 5

   Priority to serve: the executor in an admitted will, then a surviving spouse who is a devisee, a devisee, the surviving spouse or the spouse's nominee, an heir or the heir's nominee, then any other qualified person. A person under 18, an incapacitated person (unless only physically incapacitated), a convicted felon or an unsuitable person is disqualified. A nonresident individual may serve only by filing written acceptance, notice of appointment of a resident agent and a bond (IC 29-1-10-1). The court decides; appointment is not guaranteed.

6. 6

   No notice of the petition or hearing is given to anyone before appointment. After letters issue, notice of administration is published once a week for two consecutive weeks and served on each heir, devisee, legatee and known creditor. Creditors generally must file within 3 months after first publication; a creditor served more than one month after first publication has 2 months from service, and barrable claims are barred if not filed within 9 months after death. A bond is not required unless the will provides for one or the court finds one necessary.

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate. Indiana also has a small-estate affidavit route, covered on DocDraft's small-estate-affidavit page. Within probate, unsupervised administration under IC 29-1-7.5 reduces court involvement.

Indiana Requirements for Petition for Probate

• County Circuit or Superior Court Issues Letters

  The petition goes to the circuit or superior court (probate division where one exists) of the county where the decedent was domiciled; for a nondomiciliary, any county where the decedent left property. The clerk of that court issues letters (IC 29-1-7-1, 29-1-7-2).

• Petition for Probate and Letters

  One petition may seek probate of the will and issuance of letters testamentary, or appointment of an administrator with the will annexed or an administrator (IC 29-1-7-4, 29-1-7-5). It states the decedent's name, domicile and date of death, each heir, legatee and devisee with residence, whether there is a will, and the nominated executor. The court's form, where one is required, controls.

• Three-Year Window to Present a Will

  A will must be presented for probate before the latest of 3 years after death, 60 days after an order denying probate of a previously offered will, or 60 days after an order revoking probate of a previously admitted will. For deaths after June 30, 2011, if no estate was opened, a will may be probated after 3 years solely to transfer an asset still titled in the decedent's name (IC 29-1-7-15.1).

• Five-Month and Seven-Month Real Property Window

  Real property cannot be sold to pay non-lien debts or administration costs unless the petition is filed within 5 months of death and letters issue within 7 months (IC 29-1-7-15.1(b)).

• Priority and Nonresident Rule

  Priority runs from the executor in an admitted will through a devisee spouse, a devisee, the spouse, an heir and any other qualified person. A nonresident individual must file written acceptance, notice of a resident agent and a bond (IC 29-1-10-1).

• Notice of Administration After Letters

  No notice is given before appointment. After letters issue, notice of administration is published once a week for two consecutive weeks and served on each heir, devisee, legatee and known creditor (IC 29-1-7-7). In unsupervised administration, a notice to distributees cannot be waived (IC 29-1-7.5-1.5).

• Creditor Claims Period

  Claims are due within 3 months after the first published notice, and barrable claims are barred if not filed within 9 months after death. A creditor served late must file within 2 months of service (IC 29-1-14-1, 29-1-7-7).

• Bond Not Required by Default

  A personal representative need not post a bond unless the will provides for one or the court finds one necessary to protect creditors, heirs, legatees or devisees. Nonresident individuals must file a bond (IC 29-1-11-1, 29-1-10-1).