Settling Small Estates (IN)
In Indiana, full probate is not required for "small" estates enabling an executor to save considerable effort and cost, and regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Requirements
To use the small estate approach in Indiana, the following conditions must be true:
- The combined value of all estate assets subject to probate is <$100,000
- At least 45 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In calculating estate value, you should value assets as of the date of death, and subtract any associated mortgages, liens, etc. (you can also subtract the cost of reasonable funeral expenses). Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
See IC § 29-1-8.
Small Estate Process
To use the small estate process:
- Prepare a Small Estate Affidavit form (see below)
- Notify anyone else entitled to the estate property you are claiming that you intend to use a small estate affidavit (it's normal to give at least 10-day's advance notice)
- Obtain possession of the property by presenting the affidavit to the current custodian of the property (real estate cannot be transferred via small estate affidavit)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- To transfer title of a vehicle or watercraft you must also file an IN Form 18733 with the Bureau of Motor Vehicles.
Affidavit Form
You can use the Small Estate Affidavit Form provided by Indiana Legal Help.
If you instead choose to create your own, it must:
- State that the above requirements have been met
- List the name and address of everyone entitled to the property being claimed, along with their shares
- Confirm that each such person has been notified of your intent to use this affidavit
- Declare that you are entitled to collect the property on their behalf
While not necessarily required by law, it can be very helpful to have the affidavit notarized, and to attach a certified copy of the death certificate and a copy of the will (if one exists).
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in IN, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to IN Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow IN probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Intestate Inheritance
If there is no will, Indiana law defines who should inherit from the estate in IC § 29-1-2. This statute is fairly straightforward, but covers a number of circumstances, even including spousal adultery, so you should check all clauses before finalizing a distribution plan.
Court
In Indiana, the local Circuit or Superior Court handles wills and estate probate. St. Joseph County is the only Indiana county that instead has its own specialized Probate Court.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in IN.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in IN.
Finally, in case you're interested, details about handling small estates in other states can be found here: