Wills, Trusts, Estates & Probate
One of the most common misunderstandings about estate planning is the belief that it is only for the wealthy. Anyone who owns property of any kind has an estate. Basic estate planning is an important component of an organized and responsible life that doesn’t leave the burden of probate on your loved ones.
Stidham Legal, your Indiana estate planning attorney, can walk you through the basics of estate planning from wills to trusts to powers of attorney. And if a loved one has passed an Indiana estate planning attorney guides you through the Indiana probate court process during a difficult time.
What Is An Estate Plan?
An estate plan is a legal strategy designed to anticipate and arrange for the care and disposition of your property at death or permanent incapacitation.
Your Indiana estate plan typically includes a variety of legal documents, such as:
- Last Will and Testament
- Trusts
- Powers of Attorney
- Medical Directive
- Nomination of Guardianship
- Beneficiary Designations
For every benefit in having an estate plan, there are also several risks to not having one. Having an estate plan ensures certainty (whereas not having a plan results in uncertainty); having an estate plan ensures efficiency in transition of property (whereas not having a plan could result in significant delays and costs); and importantly, having a plan allows you to name who you want to be in charge of your estate after you die (whereas if you don’t have a plan the court will appoint someone).
Will
In Indiana, a Last Will and Testament is the cornerstone legal document of most estate plans. In essence, it directs who will receive your money and property when you die as well as names a person to take charge of your estate (the personal representative). Without a will, state law and the courts can dictate who receives your property.
Trust
An Indiana estate trust is an arrangement that allows your loved ones to avoid probate while giving you added controls over how your assets are distributed. Trusts can be arranged in a variety of ways and can specify how and when the assets pass to the beneficiaries. Trusts generally allow a quick transfer of assets and can save time, fees and reduce the burden on your loved ones.
Power of Attorney
An Indiana Power of Attorney (POA) is a legal document in which you designate another person (the attorney-in-fact) to act on your behalf to make decisions in individual matters or in all matters (general POA). A Power of Attorney can either have immediate effect, meaning your attorney-in-fact can act at any time, or “springing,” meaning your attorney-in-fact cannot act until you are incapacitated in some way.
Health Care Rep.
An Indiana Healthcare Representative is a person you name in your emergency, critical, and advance care plan to make medical treatment decisions for you if you become too sick or injured to make or communicate those decisions. Similar to an Indiana Power of Attorney except a Healthcare Rep. is specific to medical matters.
Living Will
A Living Will allows you to make decisions regarding your end-of-life medical treatment such as nutrition/hydration, palliative care, and organ/tissue donation. Most people create them in order to maintain control of end-of-life treatment and to relieve the burden of making tough decisions from loved ones.
Probate
Stidham Legal, your Northwest Indiana Probate Attorney, guides you through the court-supervised process that determines the value of the decedent’s assets, paying off debts and taxes, and distributing the remainder of the estate to beneficiaries, either pursuant to a will or by statute. Even with a will, probate can be a challenge to navigate. Having an experienced Indiana estate planning attorney in your corner can ensure every step goes smoothly, and the best possible outcome is achieved.
Important Issues in Indiana Estate and Probate Law Matters
Do I really need a will?
Generally speaking, most people should have a will or other estate plan in place at their death to assist their loved ones in transitioning their property. Having a will allows the person making the will the control of naming the person or entity getting their property instead of leaving it to Indiana law or courts.
Do I have to be a high-wealth individual to have a trust?
An Indiana trust is not only for high-wealth individuals. The most important feature of a trust is its ability to relieve your loved ones of the burden of the court-administered probate process. Probate is triggered when a tangible asset, such as a home or bank account, remains in the name of a deceased person and needs to be transferred to heirs.
Can I make decisions even after signing a Power of Attorney?
Yes. Even if you nominate someone else to make decisions for you (whether the power becomes effective immediately or upon disability), you still retain the power to overrule any decisions you wish. A Power of Attorney is not a guardianship and therefore you retain the right to make decisions which conflict with the agent you nominate assuming you have the legal capacity to do so. You can also revoke a Power of Attorney.
Who decides I am “incapacitated” for a springing POA?
If your Power of Attorney is “springing,” then your agent can only act upon your incapacity. For Indiana Powers of Attorney with springing powers, incapacity is determined by your attending physician or medical doctor.
Do I need both a Power of Attorney and Healthcare Representative?
While similar, an Indiana Power of Attorney and Indiana Healthcare Representative achieve different goals. A Power of Attorney allows you to designate an agent to act on your behalf typically for financial and property matters. A Healthcare Representative is an agent you designate to make medical decisions on your behalf.
Who should get a copy of my Living Will?
After your living will is created, review it with your doctor. After creation and review, you should keep the original document in a safe but easily accessible place, give a copy to your healthcare representative and discuss your wishes with your family.
Does a surviving spouse avoid probate in Indiana?
Under Indiana probate law being the surviving spouse does not mean you can automatically avoid the probate process. Assets which are in a deceased spouse’s name only may need to go through probate.
My loved one passed away and I’m being told I need to “open an estate,” what does that mean?
In Indiana, “opening an estate” means starting the court-administered probate process. While each case is different, and is best navigated with an Indiana estate attorney, the typical process consists of: 1) Petitioning the court to open the estate; 2) Providing legal notice of the death to interested parties; 3) Gathering assets and paying debts; 4) Submitting a final inventory to the Court; and 5) Closing the estate and distributing any inheritance to heirs.