Estate Planning and Probate
(1) Estate Planning. We offer the full range of legal services pertaining to estate planning. Most people understand that this is something they should get taken care of, but this is also one of the things that can be put off until it is too late. If one dies without proper estate planning documents, it will be the State of Indiana that dictates where the assets of the estate go. Indiana, like all other states, has laws of intestate succession, which dictate how a decedent’s property is distributed if there is no will or other estate planning documents. Often the state law distribution is different than what the decedent would have wanted. Additionally, the state’s “Will” for you can change anytime the legislature changes the law of intestate succession. Obviously when we draft your estate planning documents, we make sure that they are not only drafted correctly to meet with your specific needs and desires, but also that the proper formalities for signing your documents are accomplished. We have drafted thousands of wills. A related service that we do is to review wills previously drafted to make sure that they still take care of your property the way you want it to, and if it had been drafted by someone else, to make sure that there are no defects which could cause a problem or even invalidate the will.
Many of our clients choose a living trust. One of the primary benefits of a living trust is that it avoids the of the probate process. It also allows you to maintain your privacy concerning the assets of your estate. Although trusts are more involved and more complex than just having a Will, the complex part is taken care of by us in the drafting and implementing process and as we properly be sure the assets are properly transferred into the trust. Once the trust is established and funded, you will experience little difference in how you deal with your property. Furthermore, a revocable living trust is called a “grantor trust” in the Internal Revenue Code and it is totally transparent for tax purposes, meaning that you continue to report your income on your personal return as if no trust existed.
Whether you choose to proceed with a last will and testament or with a trust, we also draft other important documents including general durable powers of attorney, health care powers of attorney, living wills, and transfer on death deeds.
(2) Probate. When an individual dies owning assets, whether with the Will, or with the “will” created by state statute (intestate succession), the process for administration of the estate with the court is typically called “probate.” Assets that are held jointly with a right of survivorship are not probate assets and they go automatically according to the provisions of that type of ownership. (But beware there can be some dangers of using joint ownership with a non-spouse). Real estate that is the subject of a transfer on death deed will go according to their deed rather than be a probate asset. Assets that have a designated death beneficiary are not probate assets and they will go according to beneficiary designation. Furthermore, if the probate assets do not exceed a total of $50,000, those assets can be transferred by affidavit rather than by a court administration. When an estate must be probated, we are competent and experienced in representing our clients throughout the probate process.
(3)Probate Litigation. Sometimes disputes arise relating to the validity of a will or the administration of probate. The basis for a will contest would be either an allegation of incompetence of the maker of the Will at the time it was signed, undue influence upon a person or fraud. Probate litigation can also arise if there is a claim that the personal representative (we used to call that person the “executor”) is being dishonest or otherwise mismanaging the estate or is committed theft or some other wrong. Often probate litigation is unpleasant and emotional because it often involves related parties. We have the experience to help you navigate through that process whether you are prosecuting or defending such probate claims.
