There is no requirement that an attorney write a will, but many wills prepared without the assistance of an attorney turn out to be invalid because they fail to comply with the statutory requirements for valid wills imposed by the Indiana Probate Code. It is especially important to have an attorney if the assets are large or where the wishes of the testator are complicated. Tax advice and planning also may be needed.
Anyone who is 18 years of age or older and of sound mind may make a will. Members of the armed forces who are under 18 may also execute a will. The will must be in writing, either typed or handwritten, signed and dated. In Indiana, a will must also be executed by two subscribing witnesses. The witnesses must be individuals over age 18 who will not receive anything under the will. The testator must sign in the presence of the witnesses (or acknowledge the testator’s signature already made to both witnesses), then each witness must sign in the presence of the other and in the presence of the testator.
Witnesses are required to prove that the will is valid at the time it is offered for probate with the probate court.
When a will is submitted to probate, the Court must determine that the will is valid. Sometimes both witnesses die before the testator does or are not available to prove the will. Indiana law allows a will to be made self-proving, where the will can be proven prior to the time of the testator’s death. This is done by having the testator and both witnesses sign a self-proving affidavit, usually at the time of the will execution, which is typically incorporated into or attached to the will.
The will should state who is to receive the property upon the testator’s death. It should also include a residuary clause, designating one or more persons or charities to receive “the rest, residue and remainder of my property.” It should name a personal representative who will be in charge of the estate administration. The will can also direct that the Estate be administered without Court supervision and that the named personal representative is not required to post a bond. If a testator has minor children, the will can designate the person(s) to be appointed guardian of the minor children if both of the children's natural parents are deceased or otherwise unable to care for them. Courts consider the parent’s wishes as designated in a will when appointing such a guardian, but are not bound by the designation in the will.
A spoken or oral will (also referred to as a nuncupative will in Indiana) is valid only as to a small amount of personal property (no more than $1,000) of a person who is in imminent peril of death and who does die soon afterward as a result of the impending peril or danger. The testator must declare the will in the presence of two disinterested witnesses, and the will must be reduced to writing by one of the witnesses within thirty (30) days and submitted for probate within six (6) months after the death. In a case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand dollars ($10,000). An oral will does not revoke an existing written will, but rather the written will is changed only to the extent necessary to give effect to the oral will. The rules for spoken wills are complicated and the witnesses should see an attorney immediately.
Only one original will should be signed. The testator should keep the original in a safe place where it can be found after his or her death. The attorney, if there is one, and possibly the executor should each keep a copy. If a decedent’s original will has been lost or destroyed, a photocopy may be probated if the copy meets certain requirements.
Effective January 1, 2018, original wills are no longer required to be submitted to the Court when opening an estate. The Supreme Court, addressed this change through an amendment to Ind. Trial 86, which provides a person filing a will for probate shall file an accurate and complete copy of the will and an affidavit, signed under the penalties of perjury, containing substantially the following information:(1) Affiant possesses the Decedent’s original Last Will and Testament or the Will has been deposited with the clerk of the court; (2) Affiant is filing a true and accurate copy of the Last Will and Testament; (3) Unless the Last Will and Testament has been deposited with the clerk of the court, Affiant will retain the original Last Will and Testament until the Decedent’s estate is closed and the Personal Representative is released from liability, or the time to file a will contest has expired, whichever is later; and, (4) Affiant will file the original Last Will and Testament upon order of the court or as otherwise directed by statute.
Once written, a will is good forever unless revoked or changed. The will can be changed by adding a codicil, which acts like an amendment to the will. The codicil must be signed and witnessed just like a will. The codicil does not need to be witnessed by the same people who witnessed the will.
Writing changes in the margins or crossing out sections is not effective to change the will and may have the unintended consequence of revoking the entire will. To change a will, either a codicil or a new will must be done. A testator can revoke a will by destroying it, though it may be hard to prove that it was the testator and not someone else who did it. A better way to revoke a will is to make a new one. Since a new will revokes prior wills, the will with the latest date controls how the property passes.
Indiana law has rules to decide who gets the property and how it is divided when people die without leaving a will. The rules are long and complicated, but here is a general summary of the rules simplified:
- if the decedent is survived by a spouse and at least one living child or grandchild, the spouse gets one-half and the children divide the rest equally; if there are no living children or grand-children, the spouse receives three-fourths and the decedent’s living parent(s) receive one-fourth.
- if the spouse is a second or subsequent spouse who had no children with the decedent, but the decedent had children from other marriages, the second spouse receives an amount equal to 25 percent of the net fair market value of the real estate (FMV of the real property minus liens and encumbrances on the real property), with the children receiving the balance. The personal property goes one-half to the spouse and the other one-half to the children in equal shares.
- if there is a surviving spouse and no children or parents, the spouse receives everything.
- if there is no spouse, children or parents, property will pass to brothers and sisters, nieces and nephews, grandparents, aunts and uncles, and first cousins, according to how closely related they are to the decedent.
- ultimately, if there are no surviving heirs, then the property reverts to the state.