What Happens If There Is No Will in Indiana?

• December 1, 2021
• CLLB Law
• Estate & Elder Law

People often put off creating a last will and testament either because they’re too busy or they don’t like contemplating end-of-life issues. But postponing a will is not a good idea. It can create confusion, expense, and delay for your loved ones after you’ve passed away. When someone dies without a will in Indiana, it is called “intestate succession.” It’s a complicated legal term, so the better way to think of it is by asking, “What happens if there is no will in Indiana?”

If you die without a will in Indiana, your assets will pass to your closest relatives. These assets include only items that would have passed through a will under Indiana’s intestate laws – typically assets that you own by yourself, in your own name.

Who gets what when you die under Indiana intestate laws depends on whether you have a living spouse, children, parents, or other relatives. For these purposes, “descendants” is defined as children, grandchildren, and great-grandchildren. The breakdown is as follows:

• Spouse but no parents or descendants – Spouse inherits everything.
• Children but no spouse – Children inherit everything.
• Spouse and descendants that belong to you and that spouse – Spouse inherits half of intestate property, and children receive the other half of intestate property divided equally among them.
• Spouse and at least one descendant from a previous marriage – Spouse inherits half of your intestate personal property and one-quarter of your real estate (minus any liens); children inherit everything else.
• Spouse and parents – Spouse inherits three-quarters of your property, and parents inherit one-quarter.
• Parents but no spouse or descendants – Parents inherit everything.
• Siblings but no spouse, descendants, or parents – Siblings inherit everything.
• Siblings and parents, but no spouse or descendants – Siblings and parents share intestate property equally, but parents’ portion must be at least one-quarter of property.

Here are some important things to keep in mind where children are concerned:

• Adopted children (Ind. Code 29-1-2-8) Legally adopted children will receive the same intestate share as your biological children.
• Stepchildren and foster children – Stepchildren and foster children (who are not legally adopted by you) will not automatically receive an intestate share.
• Children placed for adoption – If you had a child that you placed for adoption who is legally adopted by someone else, that child will not automatically receive an intestate share.
• Posthumous/afterborn children (Ind. Code 29-1-2-6) – If you conceived a child that was born after you die, the child will receive an intestate share.
• Grandchildren – (Ind. Code 29-1-2-1) A grandchild receives a share of your intestate property only if their parent (your daughter or son) is deceased and unable to inherit their share.

This area of the law gets very confusing and points out the importance of creating a will to avoid dissent and hurt feelings among heirs. An estate planning attorney can answer your questions and explain these laws regarding wills in greater detail.

Other instances that impact who inherits if there is no will in Indiana

There are some occasions when money or property may pass directly to heirs even if there is no will in Indiana, thereby avoiding a lengthy probate process. These are typically instances in which a trust or named beneficiaries are present. These assets are not divided by Indiana’s intestate succession laws. Some examples of these include:

• Property a person has transferred to a living trust
• Payable-on-death savings and checking accounts at banks
• Funds in an IRA, 401(k), pension, or other retirement account
• Real property you co-own with another person
• Stocks and bonds held in a transfer-on-death account
• Life insurance assets.

The above assets are inherited based on information within the documents themselves – typically co-owners or named beneficiaries – regardless of whether a will exists. For example, you will name beneficiaries when you purchase a life insurance policy or fund a 401(k). This information is put in writing in the original document. It’s a good idea to review and update named beneficiaries periodically in case someone dies, you have more children, or you want to change your designated heirs.

What if someone dies without a will in Indiana and there is fighting within a family?

Here are the things you should know.

Fighting over assets is an unfortunate reality among family members when someone dies without a will in Indiana. Arguments can also arise when a will is vague or outdated. These fights among beneficiaries often end up in court when a family member hires an attorney to contest the will. Where wills are concerned, an ounce of prevention is definitely worth a pound of cure. The more you can do now to prevent squabbling later, the better. This is where a clear, well-crafted will can help.

If you have an older family member – like a parent or great aunt – it’s a great idea to encourage them to create an estate plan. The time to think about these things is while they’re still in good health and mentally sharp. A skilled elder law attorney or estate planning lawyer can help your loved one put their affairs in order and create tools that will enable them to protect and distribute their assets with ease.

Talk to the Estate Planning Attorneys at Church Langdon Lopp Banet

The easiest way to avoid confusion and disagreements surrounding family inheritances is to proactively create a will and estate plan. If you do this while you’re still healthy and vibrant, it gives you time to discuss your plans with your spouse and heirs and answer their questions. This helps avoid hurt feelings and arguments after you pass away. Creating an estate plan is one of the most loving gifts you can give your family members. At Church Langdon Lopp Banet Law Firm, we’ve helped many families plan for the eventual passing of property and financial assets to their heirs. We can customize a plan for you, too. This will enable you to reduce taxes and avoid a lengthy and expensive probate process. To find out more about our estate planning services, call us at 812-725-8224.