Does a Will Have to Be Filed in Indiana

My question involves estate proceedings in the state of Indiana: My mother-in-law is terminal and her will names my husband as her executor. Her will states something to the affect that it doesn't require the will to be administered by the courts. She has no assets to speak of. She has a mortgage but the value of the home is less than what she owes on the note. Her bank account has a POD beneficiary and her life insurance has direct beneficiaries so if I am correct these are non-probate items. I have read a lot of information about how to avoid probate, and I was wondering if we in fact need tofile the will in her county or if there is a way to avoid probate (small estate affidavit)? Also, if she has no assets to pay her debts, what does the executor need to do?
Thanks.

If there are no assets to deal with through probate, then there is no reason to open probate. That means you would not use a small estate process either though. If the estate is truly bankrupt, then you walk away from it with nobody taking from the estate....at all.

Nothing in the estate belongs to anybody other than the estate unless the estate is administered in some fashion. Once you determine you wish to remove anything from the estate, then you must administer the entire estate.

- - - Updated - - -

Quote:

---

Disbursement and distribution of estate
Sec. 3. (a) If it appears that the value of a decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of:
(1) twenty-five thousand dollars ($25,000), for the estate of an individual who dies before July 1, 2007, and fifty thousand dollars ($50,000), for the estate of an individual who dies after June 30, 2007;
(2) the costs and expenses of administration; and
(3) reasonable funeral expenses;
the personal representative or a person acting on behalf of the distributees, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled to it and file a closing statement as provided in section 4 of this chapter.
(b) If an estate described in subsection (a) includes real property, an affidavit may be recorded in the office of the recorder in the county in which the real property is located. The affidavit must contain the following:
(1) The legal description of the real property.
(2) The following statement:
(A) If the individual dies after June 30, 2007, the following statement: "It appears that the decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of the following: fifty thousand dollars ($50,000), the costs and expenses of administration, and reasonable funeral expenses.".
(B) If the individual dies before July 1, 2007, the following statement: "It appears that the decedent's gross probate estate, less liens and encumbrances, does not exceed the sum of the following: twenty-five thousand dollars ($25,000), the costs and expenses of administration, and reasonable funeral expenses.".
(3) The name of each person entitled to at least a part interest in the real property as a result of a decedent's death, the share to which each person is entitled, and whether the share is a divided or undivided interest.
(4) A statement which explains how each person's share has been determined.
(Formerly: Acts 1953, c.112, s.803; Acts 1959, c.239, s.1; Acts 1965, c.379, s.3; Acts 1971, P.L.406, SEC.2; Acts 1975, P.L.288, SEC.14.) As amended by P.L.146-1984, SEC.2; P.L.118-1997, SEC.17; P.L.42-1998, SEC.2; P.L.95-2007, SEC.8; P.L.220-2011, SEC.473.

---

and more statute controlling the situation:

http://www.in.gov/legislative/ic/201...9/ar1/ch8.html

along with administering the estate, the will can be filed with the courts as part of that administration, even if it is not enforced. By doing that, should there be claims against the estate or assets discovered that require additional administration, the will can still become functional. If the will is not recorded as such within 3 years of the date of death, the will can no longer be admitted for administration and the laws of intestacy would apply to the future issues.

One must realize that even if the house is underwater, if there are other assets not offset by other debts, the lender has a valid claim to those other assets. The bank does not take all the losses while heirs benefit unless the bank agrees to such.

Quote:

---

Quoting griffism

---

... Her bank account has a POD beneficiary and her life insurance has direct beneficiaries so if I am correct these are non-probate items.

---

While correct that those are non-probate items, I would add this caveat.

In theory, the POD account is subject to creditor claims. Whether a creditor would expend the effort to try to pry it back from the beneficiary(ies) is another matter.

Quote:

---

IC 32-17-13-2
Insufficiency of estate to pay claims and statutory allowances; liability of nonprobate transferee
Sec. 2. (a) Except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability to a decedent's probate estate for:
(1) allowed claims against the decedent's probate estate; and
(2) statutory allowances to the decedent's spouse and children;
to the extent the decedent's probate estate is insufficient to satisfy those claims and allowances.

---

http://www.in.gov/legislative/ic/cod...ar17/ch13.html

Quote:

---

Quoting griffism

---

My question involves estate proceedings in the state of Indiana: My mother-in-law is terminal and her will names my husband as her executor. Her will states something to the affect that it doesn't require the will to be administered by the courts. She has no assets to speak of. She has a mortgage but the value of the home is less than what she owes on the note. Her bank account has a POD beneficiary and her life insurance has direct beneficiaries so if I am correct these are non-probate items. I have read a lot of information about how to avoid probate, and I was wondering if we in fact need tofile the will in her county or if there is a way to avoid probate (small estate affidavit)? Also, if she has no assets to pay her debts, what does the executor need to do?
Thanks.

---

The life insurance goes directly to her beneficiary and is not part of her estate and cannot be claimed by her creditors.

The bank acount with a POD goes directly to the POD but could be claimed by creditors. However, as someone else said it may not be likely that they would bother.

You can walk away from the house if its upside down.

I really see no need to open probate or even deal with a small estate affidavit. There really isn't anything for the executor to do, other than clear out the house for the bank.

Quote:

---

Quoting llworking

---

I really see no need to open probate or even deal with a small estate affidavit. There really isn't anything for the executor to do, other than clear out the house for the bank.

---

and what is the exec going to do with the estate's personal property then?

Quote:

---

Quoting jk

---

and what is the exec going to do with the estate's personal property then?

---

Personal property doesn't have to go through probate, and whether or not there is anything of any significant value as far as the personal property is concerned would determine whether or not the exec had to do anything with it other than clear it out. Realistically creditors are not really interested in personal property.

If she had a house full of valuable antiques that might be something. However I think that if that had been the case the OP would have mentioned it.

Quote:

---

llworking;716438]Personal property doesn't have to go through probate,

---

really? You do realize that any property that is not real property is personal property, right? That means my Renoir*, my Monet*, and my Picasso*, and my extensive diamond collection of over 400 carats* are personal property and when it comes time, must be evaluated for their worth and considered in the division of my estate.

Quote:

---

and whether or not there is anything of any significant value as far as the personal property is concerned would determine whether or not the exec had to do anything with it other than clear it out.

---

correct but how or even has that been determined?

Quote:

---

Realistically creditors are not really interested in personal property.

---

true but they are interested in the money obtained by selling that personal property

Quote:

---

If she had a house full of valuable antiques that might be something. However I think that if that had been the case the OP would have mentioned it.

---

or is not aware of it or simply wants to not to sell the stuff to raise money to pay other debts or...

need I go on?


did you hear about the folks that were using a $5 garage sale chair for everyday use that is likely worth thousands, if not 10's of thousands of dollars?


http://kdvr.com/2013/06/04/couple-sp...rth-thousands/




*not necessarily a factual statement

Quote:

---

Quoting jk

---

really? You do realize that any property that is not real property is personal property, right? That means my Renoir*, my Monet*, and my Picasso*, and my extensive diamond collection of over 400 carats* are personal property and when it comes time, must be evaluated for their worth and considered in the division of my estate.



correct but how or even has that been determined?


true but they are interested in the money obtained by selling that personal property

or is not aware of it or simply wants to not to sell the stuff to raise money to pay other debts or...

need I go on?


did you hear about the folks that were using a $5 garage sale chair for everyday use that is likely worth thousands, if not 10's of thousands of dollars?


http://kdvr.com/2013/06/04/couple-sp...rth-thousands/




*not necessarily a factual statement

---

Again...we are not talking about that kind of personal property....and your "what if's" would fall right in line with my example of a house full of antiques. I hope you are not suggesting that every executor of every estate has to bring in expensive experts to determine whether or not the deceased's personal property is yard sale worthy vs valuable?

Quote:

---

Quoting llworking

---

Again...we are not talking about that kind of personal property....and your "what if's" would fall right in line with my example of a house full of antiques. I hope you are not suggesting that every executor of every estate has to bring in expensive experts to determine whether or not the deceased's personal property is yard sale worthy vs valuable?

---

How do you know? because the OP said this: She has no assets to speak of.

what does that mean? It's all relative.

While the OP does not see it as much of anything, it could be substantial enough to warrant liquidating to pay creditors, which, by the way, the OP has said nothing of.

Your blanket statement that personal property is not subject to administration is wrong. Your statement that the heirs or administrator can simply "take the personal property" as they wish without any concern of the value is wrong.


So, since you say my example would obviously require probate and for some reason, you believe the OP's situation doesn't due to some value determined by you, just what, precisely is the value of a property that must be administered to allow the distribution of assets to the heirs? At what level of value can the representative just take the person property of the decedent and ignore any action involving probate or administration?

You have to realize the law places a gross asset value minus liens and encumbrances of $50k for small estate administration above which actual probate must be opened. That is not a huge amount of money before it kicks up to the big leagues. I would really like to know at what point you can simply take no action and still take personal property from the estate.


and if there is no estate administration filed or will recorded in probate court, just who do you believe has the legal right to take the property?

Quote:

---

Quoting jk

---

How do you know? because the OP said this: She has no assets to speak of.

what does that mean? It's all relative.

While the OP does not see it as much of anything, it could be substantial enough to warrant liquidating to pay creditors, which, by the way, the OP has said nothing of.

Your blanket statement that personal property is not subject to administration is wrong. Your statement that the heirs or administrator can simply "take the personal property" as they wish without any concern of the value is wrong.

So, since you say my example would obviously require probate and for some reason, you believe the OP's situation doesn't due to some value determined by you, just what, precisely is the value of a property that must be administered to allow the distribution of assets to the heirs? At what level of value can the representative just take the person property of the decedent and ignore any action involving probate or administration?

---

Re the bolded: I did not make that statement. Nor do I agree that all valuable personal property (non-titled property) requires probate. What I do agree with is that should any of the personal property be of such a value that it would be worth more than yard sale value, that value must be taken into consideration in terms of the executor's duties to the creditors of the estate.

There was nothing in this post to indicate that the deceased had any assets of that nature.