Probate: What It Is and Why You May Want to Avoid It

When a person dies in Indiana with assets in his or her own name, those assets are often subject to probate. Probate is a complex legal process where the will is validated, heirs are determined, assets are inventoried and appraised, debts are paid and assets are ultimately distributed – all under the supervision of a judge. This is all done, often at great expense of both time and money, with the intent to retitle assets from the dead to the living.

If somebody dies without an estate plan designed to avoid probate, the beneficiaries likely have no choice but to hire an attorney in order to gain control over the estate’s assets. Even if there is a will, the court still needs to ensure that the will is valid and that there is no conflict between the will and Indiana law, especially when homestead property is involved.

For Indiana probate matters, you will likely need the assistance of an attorney to navigate the probate process. Indiana has two ways to tackle probate: unsupervised and supervised administration. With unsupervised administration, the Personal Representative of the estate can carry out his or her duties without obtaining court approval for things like selling assets or dealing with inheritances and taxes. With supervised administration, the probate court must approve all actions taken. Again, this adds time and expense to the process.

Here are a few more reasons you will need the help of a skilled probate attorney:

Probate ties up finances. All the assets of the estate are frozen until a Personal Representative (executor) is appointed, which can take weeks or even a few months. Meanwhile, family members may have to foot the bill for expenses relating to the estate or the assets (funeral bills, maintenance of property, taxes, insurance, etc.), until those assets are available. Once the Personal Representative is appointed, it could be months or even years before the assets are finally distributed.

Probate interferes with family business. If you want to manage or sell a decedent’s business or take action with any other asset (real estate, bank accounts, investment accounts, etc.), you will likely not be able to do so until the probate has been opened and the Personal Representative has been appointed. Even after that, you still may need approval from a probate judge.

For some estates, the Indiana probate process can take 6-12 months or, if the estate is large and/or complex, even several years to complete. There are a few other reasons why the probate process can drag on:

When there are a lot of heirs – each heir to an estate must be identified and found, and then receive, sign and return the necessary documentation to receive his or her inheritance; if there are a lot of heirs, this can delay the process.

When the estate contains unusual assets – if an estate includes a rare or valuable collection, or other items that must be valued, they must be appraised. This costs time and money.

When the Personal Representative is unfit – having a Personal Representative that is disorganized, procrastinates and does not understand finances can – and often does — delay the probate process significantly.

When there is a will contest – a will contest can significantly delay the probate process. Even if there are simply some heirs who do not get along, multiple court appearances, hearings, and ultimately court rulings all prolong the time to completion. 

When you are already grieving the death of a family member or close friend, the complex demands of the Indiana probate process can be overwhelming. An experienced and skilled attorney can help you speed the probate process along by providing the crucial guidance you need to overcome any potential obstacles and gain access to your rightful inheritance as quickly as possible. Or, if you are inclined to plan ahead, many of these obstacles can be avoided entirely. We will be here to help when you need us.