A Quick Primer on Will Contests, Guardianships and  Inheritance Litigation in Indiana

To simplify the transfer of assets after death, many Hoosiers have drafted wills or created trusts.  However, these arrangements cannot prevent every problem.  An inheritance-related dispute can tear apart families, allow creditors to siphon assets from the estate, and drag out the probate process for months or longer, preventing the family from finding the peace to grieve.

Whether you believe a person handling an estate or trust has been keeping you and fellow beneficiaries in the dark, or you and your family are concerned by seemingly undue influence by a caregiver over a parent or by aggressive actions of a creditor, a respected inheritance litigation attorney from Indiana can help you resolve the issue.

Understanding Will Contests/Inheritance Litigation

When someone dies in Indiana, his or her estate generally enters the probate process, which usually is not even court‑supervised and is designed to ensure that all of the deceased person’s debts are paid and that his or her remaining assets are transferred to the correct beneficiaries.  If all of the decedent’s assets were properly transferred to a trust prior to death, probate will not be involved, but questions involving interpretation of trust language frequently arise.  In our experience, the number of disputes arising during probate or trust administration has been increasing in Indiana.  Common cases include:

  • Disputes over validity of a will–  A will may be ruled invalid if the deceased person wrote it under duress or composed it while not mentally stable.  Wills may also be invalidated if they were not drafted properly.  For example, Indiana law requires wills be signed and acknowledged in the presence of two or more witnesses; witnesses must sign in presence of the testator (the person creating the will) and each other.
  • Disputes over the fiduciary’s behavior–  The fiduciary of the estate (commonly called an “executor or personal representative”) has a legal obligation to protect the estate’s assets, follow the will’s instructions, communicate appropriately with beneficiaries and creditors, and properly account for the estate’s assets and expenditures.  If someone takes issue with the fiduciary’s choices or actions, legal action can be taken.
  • Contradictory or confusing documents–  Many documents—wills, so-called letters of instruction, trusts, brokerage, IRA and bank account forms—can govern and influence the process, and these documents may contradict one another or lead to other types of confusion.  Special care must be taken in the transfer of retirement accounts after the death of the owner of the account and trusted professionals have been known to make critical mistakes in the process.  Litigation may be needed to straighten out the process and ensure a fair distribution of assets.

Guardianship Issues

If you suspect a close relative is no longer legally competent and does not have a valid power of attorney or is being unduly influenced, you should consider having a guardian appointed to oversee the relative’s personal and health care and finances.

Indiana law establishes a priority list of those entitled to serve as guardian as follows:  a person named in a power of attorney, a spouse, an adult child, a parent, a relative with whom the incapacitated person has lived for the prior six months, a caretaker or a person paying for a caretaker.

The court is not required to follow this priority list.  The court’s ultimate decision will hinge on what the judge believes is in the best interests of the incapacitated person.

Smart, Effective Help with Your Concerns

Dealing with estate-related disputes, trust questions, powers of attorney, legal capacity questions and guardianship issues on your own is not recommended.  To get answers to your questions in Indiana, contact either Dennis Logan or Susan Trent, who are trusted members of our team resolving these disputes.

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