The following is general legal information and not intended as legal advice.  Always seek professional legal counsel. All individual circumstances are different and it is not possible to discuss all the exceptions and distinctions for specific situations.

 

What does a will and not do?

 

At death, a properly executed will passes everything in your name alone to your specifically named heirs. A husband and wife do not have a joint will. Each spouse executes their own will. The will is affective to pass any property you own at time of death without regard to when it was purchased.   This property is generally called probate property even though such property may pass to your heirs without formal court supervision. In Indiana for estates under $50,000 generally no formal court supervision is necessary to settle the estate. However, it is still necessary for the executor or administrator (if no will) to follow the statutes with regard to priority of payment of debt, medical expenses, taxes, and administrative expenses before distribution of property to heirs. The executor or executrix is not personally responsible for the decedent’s debts however has a fiduciary duty to follow the statutes and the will with regard to payment of debts and distributions to beneficiaries.

Property, such as life insurance, Individual retirement accounts, certain types of joint deeds, certain types of joint bank accounts, etc. are considered non-probate property. This type of property passes to whom you have designated as beneficiary under each contract notwithstanding anything your will says to the contrary. It is therefore very important that you review these documents at the time you plan your estate. It is advisable to have second or contingent beneficiaries on all of these contracts. If no contingent beneficiary, these contracts may be payable to your estate if your first beneficiary predeceases you. This could have adverse tax consequences to your heirs or not give your heirs the flexibility and options available to reduce the tax on such distributions.

If there is not enough property in the decedent’s estate to pay debts it is especially important to get professional legal advice before paying any debts or distributing any property. An executor or executrix could be held responsible for property that is improperly distributed to creditors or beneficiaries.

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