Creating a last will and testament is crucial in planning the distribution of your estate (assets, including real and personal property) after your death. An Indiana will gives the testator, the person writing the will, the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Indiana will.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. An Indiana living will would take effect during a person’s life if necessary, while a last will and testament does not take effect until after the testator’s death.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator—the person creating and signing the will—to choose who will be responsible for carrying out the wishes contained in the will. If there is no will, the courts would make the decision instead. The person who oversees the will is called the “executor.”
A testator can use a will for various purposes, but the most important is to express how assets, such as homes, vehicles, business holdings, and bank accounts, should be divided upon the testator’s death. An Indiana last will and testament can also allow you to name someone as the legal guardian of your children.
Moreover, in addition to testamentary trusts (trusts that provide a benefit for people), Indiana law specifically allows for the creation of a trust for the care of animals alive during the settlor’s lifetime (“pet trust”); such a trust terminates upon the death of the last surviving animal. An Indiana will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
For estates of small value (no more than $50,000), Indiana has two simplified probate processes:
- The personal representative distributes assets according to the will and then files a closing statement with the court.
- Anyone inheriting property, aside from real estate, from the decedent presents an affidavit explaining his or her entitlement to the institution that possesses the property; that institution then turns the property over to the beneficiary.
Otherwise, the executor of an Indiana will must file a “petition for probate” with the probate court to request letters testamentary. From there, the personal representative can proceed with the administration of the estate.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the laws of intestacy. In Indiana, in the absence of a will, a surviving spouse's share of a decedent’s estate depends on whether there are also surviving children or parents.
If there are surviving descendants shared by the spouse and the decedent, the spouse is entitled to 1/2 of the intestate property and one-quarter of the fair market value of real estate (minus any liens or encumbrances); the children inherit the rest. If the decedent is survived by both a spouse and parents (but no children), the spouse receives three-quarters of the decedent’s intestate property, and the parents inherit the remainder.
If there is no surviving spouse, children, or parents, Indiana laws of intestacy grant shares of the decedent’s estate to siblings, grandparents, aunts, and uncles; the closer the relative, the higher the priority to inherit.
As you can see, if you would like to have control over the distribution of your assets and avoid the application of intestacy laws, it is essential that you have a valid Indiana will.
Exceptions to the ability to distribute property
Not all property you own can be distributed through an Indiana will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. The beneficiary of a life insurance policy may also not be changed through a will.
Form a last will in Indiana
The basic requirements for an Indiana last will and testament include the following:
- Age: The testator must be at least 18 years old or younger if a member of the armed forces or merchant marines of the United States or its allies.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else at the testator's direction and in the testator's presence.
- Witnesses: At least two witnesses must sign an Indiana last will and testament in order for it to be valid. The witnesses must sign after witnessing the testator sign the will (or acknowledgment).
- Writing: Indiana wills may be written or oral, as more fully described below.
- Beneficiaries: An Indiana will may dispose of property to any beneficiary.
Other types of recognized wills
In addition to written wills, Indiana recognizes a nuncupative, or oral, will. A nuncupative will may be recognized in Indiana only if made by someone in “imminent peril of death, whether from illness or otherwise.” Such a will is valid only if the testator then dies of that impending peril, and the will must be:
- Declared to be his will by the testator before two disinterested witnesses;
- Reduced to writing by or under the direction of one of the witnesses within 30 days after such declaration; and
- Submitted for probate within six months after the death of the testator.
Moreover, a nuncupative will may not dispose of property worth more than $1,000 unless the testator is a member of the armed forces in a time of war, in which case the limit is $10,000.
Changing an Indiana last will and testament
An Indiana last will and testament may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as a will in order for it to be valid.
Revoking an Indiana last will and testament
An Indiana will may be revoked at any time by the testator by another written will or by destroying or mutilating the will, done either by the testator with the intent to revoke or by another person in the testator’s presence and at his direction.
Revocation of a nuncupative will or any part thereof may be accomplished by a subsequent nuncupative will.
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