PROBATE

  • Estates and Trusts
  • Wills
  • Guardianships
  • Adoptions
  • Elder Law
Will

The Marion County Probate Court has jurisdiction over all the areas of Decedent Estates, Wills and Estate Planning, Guardianships and Powers of Attorney, Adoptions, and Elder Law. There are many questions about probate, or adoptions, or guardianships, and I have answered hundreds of questions posted at Lawguru.com on these and related matters of property law. Please browse through these at your leisure here.

Here I will try to answer the two biggest questions you may have.

Why Make a Will? Why Probate An Estate?

Federal Courtroom

Unless the net estate is less than $50,000, the decedent’s property must go through a court proceeding to confirm legal title to the heirs.

Take this example. Mother, eighty years old, has four children: two sons and two daughters. All the children are dutiful, loving and caring to their mother. Both sons have lived in Indianapolis all their lives, and are nearing the end of good careers at Citizen Gas and Rolls Royce. One daughter – her name was Goneril -- moved to Columbus, Ohio, where she forged her way into public school administration and accumulated millions in savings and retirement benefits. The youngest daughter – let’s call her Cordelia – stayed in Indianapolis all her life, and lived on the margins as an artist, bookseller, and actress. For the past three years, Cordelia has been living at home with her mother, helping Mom take care of herself. Because of Cordelia, Mom has not entered assisted living; she has been able to stay at her home in Southport.

So Mom decides she wants to leave the house and half of her $300,000 cash to Cordelia. After all, if it weren’t for Cordelia, all that money would have gone to a nursing home. And besides, Mom always loved Cordelia best. What to do?

Judy Noble, the daughter of one of Mom’s old friends is a lawyer at a big firm downtown. Mom makes an appointment, and finds out that Judy married Judge Daggott. On Judy Daggott’s advice Mom takes a taxi downtown and confers with the lawyer by herself alone, without Cordelia, so there would be no question of undue influence. Mom learns that if she does nothing then all her property will be divided equally among her four children. Instead of receiving the house, for her old age security, Cordelia will have to share everything equally with her millionaire siblings. Attorney Daggott suggests several alternatives: trusts, various forms of nonprobate transfers, and finally a simple will. Mom says she will go home and think it over.

Then what happens? Nothing. People procrastinate. And we especially procrastinate when it comes to estate planning. Death, taxes, all that. “And I’ll be gone, anyway.” Who doesn’t procrastinate is Mother Nature, who is a relentless mean mother. Mom notices her powers are fading and quickly decides to do the easiest thing: make a will. Which Judy Noble Daggott prepared and which Mom and two witnesses duly signed. Mom gives Cordelia a copy and puts the original in her safety deposit box. All Good.

Mom dies. Cordelia shows the will to Goneril and her brothers, and continues to live at the house. Six months go by. Cordelia and her brothers are even better procrastinators than Mom.

Not Goneril. Goneril is a planner, and a good friend of the big law firm in Columbus that makes millions a year from her school district. A year goes by. Two years. Then three years and a month after Mom died, Goneril files a petition to probate Mom’s estate. And because Mom has been dead for more than three years, her will is not admitted to probate. Instead Goneril makes Cordelia move out of the house so it can be sold, and Goneril gets a full 25% of everything, plus the estate has to pay her fees as an administrator and her attorney’s fees as an attorney for the estate. That’s the law.

If you have any questions, call me. My cell phone is 317-414-3339.

© 2011 David DuMond

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