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Estate and Trust Administration

My loved one has recently passed away. Do I need to do anything legally, and where do I start?

There is not a simple answer to this question. There may be a number of different things which affect what you must, should or can do when a loved one passes away.

The first thing is the nature of your loved one's property. There are different requirements for passing on a deceased person's property, based upon whether the property is held jointly, has a beneficiary designation, is in trust, or is just in the deceased person's name. Even if the property does not require the appointment of a personal representative - for example if it is jointly-held, has a beneficiary or "POD" designation, or is in trust - it may be necessary to take formal steps with the County Assessor and file an Indiana Inheritance Tax Return.

Another thing which may affect the answer to this question is creditors. If the deceased person had creditors, it may be advisable to have a personal representative appointed to flesh out and settle any creditor claims. In the end, the best place to start is by contacting an attorney to find out what may be required or advisable in your particular situation.

My loved one died without a Will. What happens with his property?

The answer to this question depends, in large part, upon the nature of the property which the deceased person held. Jointly-held property will generally pass to the surviving joint owner(s). This is so, even if there is no Will. There may be instances, though, when joint property is part of a "probate estate", which requires the appointment of a personal representative.

Property which has a beneficiary designation or which is made "payable on death" will generally pass to the designated beneficiary. This is so, even if there is no Will. While such property does not become part of the deceased person's probate estate, it may still be part of his estate for the purpose of the Indiana Inheritance Tax.

If the deceased person created a trust and transferred his property into the trust, the terms of the trust will determine what happens with the property. This is so, even if there is no Will. Property does not automatically transfer into a trust, however; there may still be property in a probate estate, even if the deceased person created a trust ,but failed to transfer the property to the trust.

If the deceased person had property which is not jointly-held, which had no beneficiary designation, and which was not in trust, that property will become part of his probate estate. When there is no Will, the property will be distributed to his heirs. "Heirs" are family members; however, it may include family members whom the deceased person does not want to share in his estate, and the property may be divided in a manner inconsistent with his intent.

My loved one recently passed away and had a trust. Do I still need to do anything?

You will still need to do some things. How much you need to do will depend upon exactly what your loved one did with his trust.

If the deceased person created a trust and transferred his property into the trust, it will likely not be necessary to have a personal representative appointed and to "open an estate". As mentioned above, property does not automatically transfer into a trust, -therefore; there may still be property in a probate estate, even if the deceased person created a trust.

Even if it is not necessary to open a probate estate, there will still be some administrative matters which will be required of you by the trust. You will likely need to prepare Applications for Consent to Transfer and file them with the County Assessor. In addition, you may be required to file an Indiana Inheritance Tax Return. You will also likely need to prepare an income or "fiduciary" tax return for the trust, and provide income tax information to the beneficiaries.

My loved one recently passed away and left all of his property with a beneficiary designation. Do I still need to do anything?

Property with a beneficiary designation is common. Examples include life insurance, annuities, retirement accounts, and accounts which are "payable on death". Generally, that property will pass to the designated beneficiary, and will not require the appointment of a personal representative.

However, there will still likely be some things which you need to do. To transfer the property, it will likely still be necessary to prepare an Application for Consent to Transfer and file such Application with the County Assessor. In addition, you may still be required to file an Indiana Inheritance Tax Return.

In addition, certain types of beneficiary designation property - retirement accounts and annuities, in particular - have income tax consequences to the beneficiaries which may be significant. These consequences may be affected by certain elections which you may be able to make. You should speak with an attorney or other advisor to be certain that you are aware of all relevant elections, and that you properly understand the income tax consequences of such property.

Can I handle the estate administration without an attorney?

There is no requirement that you employ an attorney to assist with the administration of a trust or estate. However, there are a lot of technical requirements in the course of administering either an estate or trust, including the preparation of an accounting, the preparation and filing of income and Inheritance Tax returns, Applications for Consent to Transfer, and interactions with the Court. More significantly, as a trustee or personal representative you are a "fiduciary", and owe certain obligations and responsibilities to the beneficiaries of the estate or the trust. If you choose to represent yourself, the Court will expect you to be knowledgeable of these procedures, and those to whom you owe a fiduciary obligation have a legal right to expect that you will appropriately discharge those obligations and responsibilities.

We understand those obligations and responsibilities. We have experience in handling the technical requirements. Our goal in representing personal representatives and trustees is to provide them with excellent service in navigating the potential hazards in administration, and to help them administer the estate or trust properly and efficiently.

How long does estate administration take?

There is no easy answer to this question. The length of time necessary for estate or trust administration may depend upon a number of things: the size of the estate; the nature of the assets; whether there are any disputes; and the nature of the tax returns which may be required. For instance, if there is real estate in the estate which must be sold, the timing of the sale of the real estate will likely dictate the length of time necessary for the administration. Similarly, if it is necessary to file a Federal Estate Tax Return, the process of the Internal Revenue Service review will likely dictate the length of time necessary for administration.

How much do you charge for work in representing personal representatives and trustees?

We will charge a fair fee for our service in representing personal representatives and trustees. That is not an attempt to dodge the question. Rather, we have come to recognize that estate and trust administration is most often not "one size fits all". Each estate or trust will have its own unique elements, which will require different services of us, as attorneys. Our fee will be based upon the nature of the work done for our client, the amount of time involved, the employment of any particular expertise on our part, and the results obtained for the client.

Most significantly, the determination of what constitutes a "fair fee" is not a one-way street. The client has a role in that determination, too.

While we cannot give a representation as to what the cost may be in any particular situation, we will propose to our client what we believe constitutes a fair fee once we have an accurate feel for what the estate or trust administration will entail.