Probate Law

April 9, 2015 | Category: Probate

The House Judiciary Committee heard SB 65 concerning claim deadlines authored and presented by Sen. Holman. The bill amends provisions related to the time frame for barring claims filed against an estate and the statute of limitations on claims. These provisions would apply to estates when the decedent’s death occurred after June 30, 2015. An amendment was offered that provides a new procedure for filing a notice to preserve a claim with the clerk’s office for a $25 fee. The notice to preserve a claim may be filed at any time after the decedent’s death, before a petition to appoint a personal representative is filed, and not later than nine months after the decedent’s death. This provision specifies what information must be included in the notice to preserve a claim, these notices may be assigned to another any time after filing, and these notices expire18 months after the decedent’s death. The amendment also details the specific circumstances that will result in a barred claim based on key time lines and whether or not a notice to preserve a claim was filed; requires the personal representative to specify the proper deadline for claims on notices served to creditors; and makes conforming amendments to the statute of limitation provisions. The amendment was adopted by consent. The Indiana State Bar Association testified in favor of the bill and amendment. The bill passed as amended 11-0.

Probate Law

April 2, 2015 | Category: Probate

The House Judiciary Committee heard SB 355 concerning various probate and trust matters sponsored by Rep. Koch.  Author Sen. Steele introduced an amendment concerning attorneys in fact which was adopted by consent.  As amended, the bill provides that a trust may incorporate by reference a document that exists at the time the trust is executed. The bill also specifies that funeral expenses and expenses of a tombstone are expenses of administration. It expands the definition of “person” under the probate code to include governmental entities and other legal entities. The bill provides that a non-probate transfer to a testamentary trust: (1) is valid upon the will being admitted to probate; and (2) is not subject to claims against the probate estate. It allows a governmental entity or business entity (in addition to an individual) to be a transfer on death beneficiary of an automobile or a watercraft. The bill also allows a governmental entity or business entity (in addition to an individual) to be appointed a health care representative and amends the order of priority of persons who may control the disposition of a decedent’s body. The bill provides that a power of attorney may delegate the authority of a parent or guardian with respect to the health care of a minor or protected person.  It adds that an attorney in fact is entitled to judicial review and settlement of an account. Lastly, the bill provides that absent fraud, misrepresentation, inadequate disclosure, or failure to provide proper notice, an attorney in fact is discharged from all liability as to the transactions in the accounting if proper notice is provided of the court’s approval of the accounting.  An attorney with the Probate Trust and Real Property Section of the Indiana State Bar Association testified in support of the bill. The amended bill passed 9-0.  

Probate Law

February 27, 2015 | Category: Probate

Bill No. Bill Title Committee 2nd Reading 3rd Reading Sponsor(s)
SB 5 Uniform Powers of Appointment Act 1/22/15 Do Pass 1/26/15 Engrossed 1/27/15 Passed 50-0 Washburne
SB 57 Accounts under a power of attorney 1/8/15 Do Pass –A 1/12/15 Engrossed 1/13/15 Passed 48-1 Cox, Steuerwald
SB 65 Claim deadlines 1/27/15 Do Pass –A; 2/17/15 Do Pass –A 2/23/15 Engrossed 2/24/15 Passed 48-2 Koch
SB 291 Probate code study commission 1/27/15 Do Pass –A 2/2/15 Engrossed –A 2/3/15 Passed 45-5 Koch
SB 355 Various probate and trust matters 2/17/15 Do Pass –A 2/19/15 Engrossed 2/23/15 Passed 49-0 Koch
SB 368 Uniform Fiduciary Access to Digital Assets Act 1/22/15 Do Pass 2/2/15 Engrossed 2/3/15 Passed 49-0 Speedy

Probate Law

February 20, 2015 | Category: Probate

The Senate Civil Law Committee heard Sen. Holdman’s SB 65 on claim deadlines. This bill removes provisions barring certain claims filed against a decedent’s estate more than nine months after the date of the decedent’s death. The amendment, adopted by consent, changes the deadline to either nine months or after two months have passed from the date notice is given to the creditor, whichever is later. The amended bill passed 8-1.

The Senate Civil Law Committee heard Sen. Steele’s SB 355 on various probate and trust matters. This bill provides that a trust may incorporate by reference a document that exists at the time the trust is executed. It also specifies that funeral expenses and expenses of a tombstone are expenses of administration. The bill expands the definition of “person” under the probate code to include governmental entities and other legal entities. The legislation also provides that a nonprobate transfer to a testamentary trust is valid upon the will being admitted to probate, and is not subject to claims against the probate estate. It also allows a governmental entity or business entity (in addition to an individual) to be a transfer on death beneficiary of an automobile or a watercraft. It allows a governmental entity or business entity (in addition to an individual) to be appointed a health care representative. The bill amends the order of priority of persons who may control the disposition of a decedent’s body. It provides that a power of attorney may delegate the authority of a parent or guardian with respect to the health care of a minor or protected person. The bill was amended clarify who is able to make funeral arrangements. A representative from the Indiana Funeral Directors Association testified in favor of the amendment, which removes uncertainty about who is authorized to take care of funeral arrangements.  A representative from the Probate, Trust, & Property Section of the Indiana State Bar Association testified in favor of the bill.  The amended bill passed 8-0.

Probate Law

February 13, 2015 | Category: Probate

The Senate Civil Law Committee heard SB 56, authored by Sen. Steele and Sen. Bray, on authorizing the establishment of legacy trust and prescribing the procedures for establishing one. This bill provides that a protective provision in a legacy trust prevents a creditor of the settlor from satisfying a claim from the settlor’s interest in the trust estate when the settlor is also a beneficiary of the trust. It also bars most claims against a legacy trust and permits claims against a legacy trust for certain fraudulent transfers, to enforce certain child support orders, and to enforce certain orders for the division of property with respect to a dissolution of marriage or a legal separation. The bill provides immunity to the trustees and advisers of legacy trusts and the professionals involved in establishing legacy trusts and that the rule against perpetuities does not apply to legacy trusts. The bill was amended to change the statute of limitations to four years and add a 6 months’ notice of transfer. Another amendment allows for electronic messages and notice. The amended bill passed 4-3. 

Probate Law

January 30, 2015 | Category: Probate

The Civil Law Committee heard SB 56 authorizing legacy trusts authored by Sens. Steele and Bray. The bill establishes procedures for creating a legacy trust that protects the transferor’s assets from creditors while allowing the transferor to retain an interest in the trust. The bill allows claims against the trust for fraudulent transfers, enforcement of certain child support orders and the division of property in a marriage dissolution or legal separation action. The bill also specifies that the rule against perpetuities does not apply to legacy trusts. A technical amendment was adopted by consent. The Indiana State Bar Association, Probate, Trust and Real Property Section testified at length in support of the bill. Extensive testimony in opposition to the bill was heard from the Indiana Banker’s Association, the Indiana Creditors Union League, and legal practitioners. Additional amendments were discussed. The bill was held for further review.

The Civil Law Committee heard SB 291 authored by Sens. Zakas and Steele recommending that the Legislative Council reestablish the probate code study commission. Two amendments were adopted by consent. The first amendment authorizes the commission to meet as needed. The second amendment removes the fiscal aspects of the bill. The Indiana State Bar Association, Probate, Trust and Real Property Section testified in support of the bill. The Indiana Banker’s Association also testified in support of the bill but recommended that the commission composition be reviewed to ensure balance. The amended bill passed 9-0.

Probate Law

January 23, 2015 | Category: Probate

The Senate Judiciary Committee heard SB 5, authored by Sen. Bray, the Uniform Powers of Appointment Act. This bill urges the legislative council to assign to the interim study committee on courts and the judiciary or another appropriate interim study committee the topic of the Uniform Powers of Appointment Act, as approved and recommended by the National Conference of Commissioners on Uniform State Laws. The bill passed 10-0.

The Senate Judiciary Committee heard SB 368, authored by Sen. Waltz, the Uniform Fiduciary Access to Digital Assets Act. This bill enacts the Uniform Fiduciary Access to Digital Assets Act, drafted by the National Conference of Commissioners on Uniform State Laws. It vests fiduciaries with the authority to access, control, or copy digital assets – like emails and Facebook accounts. The Uniform Law Commission spoke in favor of the bill. The bill passed 9-0.

Probate Law

January 8, 2015 | Category: Probate

The Senate Judiciary Committee heard SB 57, authored by Sen. Steele as recommended by the probate section of the Indiana State Bar Association, on accounts under a power of attorney. The bill provides that an attorney-in-fact is entitled to judicial review and settlement of an account. It also provides that absent fraud, misrepresentation, inadequate disclosure, or failure to provide proper notice, an attorney-in-fact is discharged from all liability as to the transactions in the accounting if proper notice is provided of the court’s approval of the accounting. The bill was amended to allow the filing fee for the judicial review to be taken out of the principal’s estate. The bill passed 9-1. 

Probate Law

April 15, 2014 | Category: Probate

Probate, trust, and transfer on death matters
S.E.A. 36, P.L. 51-2014
Effective: July 1, 2014
Provides that a petition or other document filed in court by a personal representative in an estate proceeding with a written consent to the petition or other document or a written waiver of notice of the proceedings in the estate is not required to include a statement that the personal representative delivered a copy of the petition or other document to each person whose written consent or waiver of notice of proceedings was presented to the court, if the petition or other document contains a statement by the person whose signature appears on the consent or waiver: (1) identifying the petition or other document; and (2) affirming that the person has received a copy of the petition or other document and had a reasonable time to read and understand the petition or other document before signing the consent or waiver. Requires a party contesting the validity of a will to serve a copy of the complaint on the counsel for the personal representative. Provides that the court may not enter a default judgment for the contesting party unless proof of service on the counsel for the personal representative is made to the court. Specifies that the procedures for dispensing with the administration of small estates are available to distributees and persons acting on behalf of distributees rather than persons claiming to be entitled to payment from the decedent’s estate. Provides for an enforcement action against a person who does not comply with a fiduciary’s demand or instruction. Allows a court to award attorney’s fees and costs in certain enforcement proceedings. Provides that payments on liens paid with respect to a probate distribution are charged to the beneficiaries of the distribution unless the will provides expressly or by necessary implication that the payment be charged against the residue of the estate. Provides that a general directive in a will to pay debts does not imply an intent that a devise of property subject to a lien be distributed free from the lien. Provides that if trust property subject to a lien is specifically distributable, the distributee shall take the property subject to the lien unless the terms of the trust provide expressly or by necessary implication that the lien be otherwise paid. Provides that payments on liens paid with respect to a trust distribution are charged to the beneficiaries of the distribution unless the trust provides expressly or by necessary implication that the payment be charged against the residue of the trust estate. Provides that a general directive in a trust to pay debts does not imply an intent that a distribution of property subject to a lien be distributed free from the lien. Makes changes to the uniform principal and income act (act). Provides that a personal representative is a fiduciary under the act if provided for: (1) by the will; or (2) by a law allowing the personal representative to account for and distribute income received during the estate administration separately from the corpus of the estate. Provides the following with regard to distributions to beneficiaries after an income interest in a trust ends: (1) Upon the death of the settlor of a revocable living trust, the settlor’s trust interest becomes a terminating income interest and the property transferred upon the settlor’s death becomes a part of the trust when the property is received by the trust. (2) A decedent’s estate is not a terminating income interest. Provides that an asset becomes subject to a trust on the date the asset is distributed to the trust from the decedent’s estate: (1) if the income received during the administration of the estate was accounted for and distributed by the estate as part of the corpus of the estate; and (2) unless the will or other applicable law provides that income received during the estate administration is accounted for and distributed by the estate as income and not as part of the corpus of the estate. Specifies that provisions that determine the period in which an income beneficiary is entitled or eligible to receive net income of a trust do not control how receipts and disbursements are allocated to or between principal and income during that period. Specifies that provisions regarding which income receipts and disbursements of a trust are to be taken into account in determining the net income of the trust for the period after the beginning and before the end of a beneficiary’s income interest do not control the initial classification of receipts and disbursements as between principal and income. Defines the following for purposes of the trust code: (1) “Trust instrument”. (2) “Terms of a trust”, “terms of the trust”, or “terms of a charitable trust”. Provides that unless the trust provides otherwise, a trustee has a duty to keep current income beneficiaries and, in the case of a trust that has become irrevocable, contingent income beneficiaries, reasonably informed by providing access to the trust’s accounting and financial records upon written request. Provides that unless the trust provides otherwise, the trustee has a duty after the trust becomes irrevocable to provide income beneficiaries and remaindermen with a copy of the trust instrument upon written request. Provides that a trustee’s power under certain circumstances to appoint all or part of the principal of a trust into a second trust is available when the trustee has discretion to invade the principal of the first trust to make distributions to or for the benefit of at least one person. (Current law grants the power of appointment to a trustee who has absolute power to invade the principal of the first trust to make such distributions.) Provides that the notice given to a person by a trustee that starts the period within which to contest the validity of a trust must state: (1) the person’s interest in the trust, as described in the trust document; or (2) that the person has no interest in the trust. Provides that a delegation of authority by an attorney in fact survives even if the attorney in fact who delegated the authority fails or ceases to serve unless: (1) the delegation of authority by its terms terminates under these circumstances; (2) the delegation of authority is revoked; or (3) the power of attorney expires or becomes otherwise invalid or unenforceable. Specifies that a child of the principal who requests an accounting from an attorney in fact is entitled to delivery of the requested accounting. Specifies that the 60 day delivery deadline set forth in current law for requested accountings applies to court ordered accountings. Provides that in the case of a principal who has died: (1) the court may order an accounting at any time; and (2) the 60 day delivery deadline applies to a written request for an accounting that is submitted to the attorney in fact not later than nine months after the date of the principal’s death. Defines the terms “fiduciary” and “fund” for purposes of a statute concerning powers granted to an attorney in fact with respect to fiduciary transactions of the principal. Provides that the powers granted to an attorney in fact apply: (1) to a fund existing at the time the power of attorney is executed; (2) to a fund created after the power of attorney is executed; and (3) whether or not the fund is located in Indiana. Requires, upon the death of an owner whose transfer on death deed has been recorded, that the beneficiary file an affidavit in the office of the recorder that includes the date of the owner’s death (instead of a certified copy of the owner’s death certificate). (The introduced version of this bill was prepared by the probate code study commission.)

Probate Law

February 21, 2014 | Category: Probate

The House Judiciary Committee heard SB 36 concerning probate, trust, and transfer on death matters authored by Sen. Delph and sponsored by Reps. Koch and Washburne.  The bill focuses on the following areas: statements within petitions or other estate documents regarding delivering copies to those who consent or have signed waivers of notice; requiring a complaint for will contest to be served on the personal representative of the estate and proof of such service is required prior to a default judgment entry; making procedures for dispensing with the administration of small estates available to distributees rather than claimants entitled to payment from the estate; provides for an enforcement action if a person does not comply with a fiduciary’s demand or instruction and allow the court to award attorney’s fees and costs if the person acted in bad faith in refusing to comply or fails to respond within 30 days of receiving the demand or instruction;  provides that liens paid on probate distributions are charged to the beneficiaries of the distribution unless the will provides otherwise; provides that trust property subject to liens that is specifically distributed the property is taken subject to the lien unless the trust provides otherwise; provides that general directives in the will or trust to pay debts does not imply intent to devise property free from liens; makes changes to the Uniform Principle and Income Act, the trust code, provisions on powers of  attorney, and transfers on death.  The Indiana State Bar Association testified on the bill, which passed 10-0.