Probate Rules

Local Probate Rules

LR29-PR00-701. NOTICE

701.10 Whenever notice by publication and/or written notice by U.S. Mail is required to be given, the attorney shall prepare such notice and shall ensure that such notice is properly published and/or served by certified mail, return receipt requested. In all respects, the notice shall comply with all statutory requirements. It shall be the attorney's responsibility to ascertain and provide adequate proof thereof regarding whether notice was properly served prior to bringing a matter to the Court. 

701.20 Copies of petitions or motions shall be sent with all notices where the hearing involved arises from the matters contained in the petition or motion. 

701.30 Whenever any estate or guardianship account (including a final account in a supervised estate) is set for hearing, copies of the account must be served with the notice of hearing. 

701.40 Notice of the opening of an estate shall be sent by First Class United States Mail to all reasonably ascertainable creditors; however, the use of certified mail, return receipt requested, to serve such notice is recommended. 

701.50 Notice of the hearing to be held on a Petition to determine an estate insolvent shall be served on all interested parties, including the local representative of the Inheritance Tax Division of the Indiana Department of Revenue.
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LR29-PR00-702. FILING OF PLEADINGS

702.10 All parties are required to prepare orders for all proceedings except when expressly directed otherwise by the Court. 

702.20 Every inventory and accounting filed in an estate or guardianship will be signed and verified by the fiduciary and signed by the attorney for the fiduciary. 

702.30 All pleadings filed shall contain the parties' name, address and telephone number and/or the parties' attorney's name, address, telephone number and registration number. 

702.40 The initial petition to open an estate or guardianship shall contain the name, address, social security number (in compliance with Indiana Rules on Access to Court Records Rule 5) and telephone number of the personal representative or guardian, if a person.

702.50 The Instructions to the Personal Representative or Guardian, executed by the fiduciary, must be filed with the Court at the time letters are ordered issued in the proceeding (Forms PR00-1, PR00-2, PR00-3, PR00-4)

702.60 The affidavit of compliance with the notice provisions directed to creditors in an estate proceeding shall be timely filed with the Clerk of the Court. 

702.70 ASSIGNMENT OF MH PROBATE CASE NUMBERS:

  1. The Clerk shall assign cause numbers for new filings of all MH case types to Hamilton Superior Court No. 1 and Hamilton Superior Court No. 3.
  2. The Clerk shall equally assign such new filings to Superior Court No. 1 and Superior Court No. 3 or by any other method as the judges of said courts shall agree.

702.80 ASSIGNMENT OF EM/ES/EU, GU, AND TR PROBATE CASE NUMBERS: The Clerk shall assign cause numbers for new filings of EM/ES/EU, GU, and TR case types to Hamilton Superior Court No. 1, Hamilton Superior Court No. 2, and/or Hamilton Superior Court No. 3 on an even and random basis.
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LR29-PR00-703. ATTENDANCE OF PROPOSED FIDUCIARIES

703.10 All proposed personal representatives and guardians who are residents of Indiana shall appear before the Court to qualify.

703.20 Nonresident personal representatives and guardians shall either appear or submit an affidavit describing their education, employment, and lack of felony convictions. 703.30 Such personal representative or guardian is under a continuing order of the Court to personally advise the Court and the attorney or record in writing as to any change of any required information such as name, address, social security number, or telephone number.

LR29-PR00-704. REPRESENTATION OF FIDUCIARIES BY COUNSEL

704.10 No personal representative or guardian of an estate may proceed without counsel, without court approval.
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LR29-PR00-705. BOND

705.10 In every estate and guardianship, the fiduciary, prior to the issuance of letters, shall file a corporate surety bond in an amount not less than the value of the personal property to be administered, plus the probable value of annual rents and profits of all property of the estate or in such amount as shall be set by the Court, except as hereafter provided:

  1. Where, under the terms of the Will, the testator expresses an intention that the bond be waived, the Court shall set a bond adequate to protect creditors, tax authorities, and devises. 
  2. Where the fiduciary is an heir or legatee of the estate, the bond may be reduced by said fiduciary's share of the estate, or the value of real estate, or other assets that cannot be transferred or accessed without court approval or order. The Court shall have the right to review the amount of bond if the Court should grant access to such property or asset. 
  3. Where the heirs or legatees have filed a written request that the fiduciary serve without bond, the Court may set bond in an amount adequate to protect the rights of the creditors and tax authorities only. 
  4. In an unsupervised estate, bond may be set at the discretion of the Court. 
  5. No bond shall be required in any supervised estate or guardianship in which corporate banking fiduciary qualified by law to serve as such is either the fiduciary or one of several co-fiduciaries. 

705.20 In lieu of a bond as required by LR29-PR00-705.10, the Court, upon the fiduciary's request, may restrict transfer of all or part of the estate or guardianship liquid assets by placing those assets in a federally-insured financial institution or in a court approved investment with the following restriction placed on the face of the account or in the investment document:

"NO PRINCIPAL OR INTEREST SHALL BE WITHDRAWN WITHOUT WRITTEN ORDER OF ________________________ COURT OF _______________________, INDIANA."

The fiduciary shall thereafter file with the Court within ten (10) days of the order authorizing the creation of the account or investment, a certification by an officer of the institution at which the account or investment has been created, affirming that the account or investment is restricted as required by the Court order and is in compliance with this rule (Form PR00-5). 

705.30 All petitions to open an estate or guardianship shall set forth the probable value of the personal property plus the estimated annual rents and profits to be derived from the property in the estate or guardianship. 705.40 The name and address of the insurance agency providing the corporate surety shall be typed or printed on all corporate bonds in any estate or guardianship.
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LR29-PR00-706. INVENTORY

706.10 An inventory shall be filed by the fiduciary in estates and guardianships as follows: Supervised estates, within sixty (60) days; guardianships, within ninety (90) days for permanent guardians and within thirty (30) days for temporary guardians. All times relate to the date of appointment of the fiduciary. 

706.20 In the event a partial inventory is filed, all subsequent inventories must contain a recapitulation of prior inventories. 

706.30 In the event that the personal representative should request that an inventory be sealed, the Court may, in its sole discretion, seal such inventory. If an inventory is sealed, it shall be maintained in the court reporter's evidence file in the Court in which such estate is filed.
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LR29-PR00-707. REAL ESTATE

707.10 In all supervised estates and guardianships in which real estate is to be sold, a written professional appraisal shall be filed with the Court at the time of filing the Petition for Sale, unless such appraisal was filed with the inventory. Such written appraisal shall include as a minimum the following elements: 

  1. A brief description of the property interest being appraised, including the full and legal description thereof. 
  2. Purpose or objective of the appraisal. 
  3. Date for which fair market value is determined. 
  4. Data and reasoning supporting the fair market value. 
  5. Fair market value determined. 
  6. Statement of assumptions and special or limiting conditions. 
  7. Certification of disinterest in real estate. 
  8. Signature of the appraiser. 

707.20 All such appraisals required by LR29-PR00-707.10 shall be made within one year of the date of the Petition for Sale. 

707.30 All deeds submitted to the Court for approval in either estate or guardianship proceedings shall be signed by the fiduciary and the signature notarized prior to its submission. All such deeds shall be submitted with the Report of Sale of Real Estate or at the time of the hearing on the Final Account. Copies of such deeds shall be submitted with the Report of Sale of Real Estate or at the time of the hearing on the Final Account. Copies of such deeds shall be filed with the Court for its records. 

707.40 Whenever a Final Decree reflects that real estate has vested in heirs or beneficiaries, the Decree shall be recorded with the County Recorder of the County where any such real estate is located and evidence of said recording shall be provided to the Court with the Supplemental Report. 

707.50 No Personal Representative's Deed shall be approved in unsupervised estates.
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LR29-PR00-708. SALE OF ASSETS

708.10 In all supervised estates and guardianships, no Petition to Sell Personal Property shall be granted unless a written appraisal prepared by a person competent to appraise such property and setting forth the fair market value thereof, is filed with the Court at the time of the filing of the Petition to Sell, unless such appraisal was filed with the inventory. This rule shall not apply to personal property which is sold at public auction. 

708.20 All appraisals required by LR29-PR00-707.10 shall be made within one year of the date of the Petition to Sell. 

708.30 No written appraisal shall be required for the sale of assets which are traded in a market and the value of which is readily ascertainable. Such assets include, but are not limited to, stocks, bonds, mutual funds, commodities, and precious metals.
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LR29-PR00-709. CLAIMS

709.10 Three (3) months and fifteen (15) days after the date of the first published notice to creditors, the fiduciary, or the fiduciary's attorney, shall examine the Claim Docket and shall allow or disallow each claim filed against the estate.
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LR29-PR00-710. ACCOUNTING

710.10 Whenever an estate cannot be closed within one (1) year, the personal representative shall:

  1. File an intermediate account with the Court within thirty days (30) after the expiration of one (1) year and each succeeding year thereafter. The accounting shall comply with the provisions of IC 29-1-16-4 and 29-1-16-6 and:
    1. Shall state facts showing why the estate cannot be closed and an estimated date of closing. 
    2. Shall propose partial distribution of the estate to the extent that partial distribution can be made without prejudice to the distributees and claimants; or
  2. File a statement with the Court stating the reasons why the estate has not been closed. In addition, the Court reserves the power to require the personal representative to comply with the accounting provisions of sub-part (a) above. 

710.20 All guardianship accountings shall contain a certification of an officer of any financial institution in which guardianship assets are held, verifying the account balance (Form PR00-5).

710.30 All social security or Medicare benefits received on behalf of an incapacitated person shall be included and accounted for in the guardianship accounting unless court approval has been previously granted to allow said funds to be paid directly to a residential or health care facility, or because of the amount of such funds, the Court finds that such funds can only be used by the guardian or designated person for the benefit of use of such incapacitated person. 

710.40 In all supervised estate and guardianship accountings, vouchers or canceled checks for the expenditures claimed shall be filed with the accounting. No affidavits in lieu of vouchers or canceled checks will be accepted from individual fiduciaries, unless prior written approval is granted by the Court (the Court may set forth any and all additional conditions and/or extra ordinary circumstances needed for such approval). An affidavit in lieu of vouchers or canceled checks may be accepted from a state or federally chartered financial institution who serves as a fiduciary, provided the financial institution retains the vouchers or canceled checks on file or by electronic recording device and makes same available to interested parties upon court order. The Court may require such institution to provide a certification from its Internal Audit Department verifying the accuracy of the accounting. 

710.50 In all supervised estate and guardianship accountings, a notation shall be placed by each expenditure indicating the reason for or nature of the expenditure unless the payee name indicates the nature of the expenditure. 

EXAMPLE: Bogota Drugs - Toiletries for incapacitated person 
Dr. John Jones 
Sam Smith - Repair roof of home at 162 Maple Street, Any Town, Indiana 
Tender Care Nursing Home 

710.55 All accountings to the Court shall contain an itemized statement of the assets on hand. 

710.60 Receipts or canceled checks for all final distributions shall be filed either in the final report, or a supplemental report, before discharge will be granted by the Court. 

710.65 All accountings shall follow the prescribed statutory format. Informal, handwritten, or transactional accountings will not be accepted, except as permitted by LR29-PR00-714. 

710.70 All court costs shall be paid and all claims satisfied and released before the hearing on the Final Account shall be approved.

710.75 The Federal Estate Tax Closing letter and the Indiana Inheritance Tax Closing letter (or the countersigned receipt) or a photocopy thereof, showing payment of all Federal Estate and/or Indiana Inheritance Tax liability in the estate, executed by the Internal Revenue Service or the Indiana Department of State Revenue, shall be attached to the Final Accounting at the time of filing, unless the Court has given prior written approval to attach such letter to the Final Report, after filing but prior to the hearing on the Final Accounting. 

710.80 When an individual has been appointed to handle the financial affairs of a protected person, an accounting shall be filed within thirty (30) days after the first anniversary of the date the guardianship letters were issued. Thereafter, unless a contrary order is issued by the Court, all accountings shall be filed biennially.
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LR29-PR00-711. FEES OF ATTORNEYS AND FIDUCIARY

711.10 No fees for fiduciaries or attorneys shall be paid out of any supervised estate or guardianship without prior written order of the Court. 

711.20 All orders for fees in estates shall provide that said fees are to be paid only after approval of the Final Accounting except the Court may in its sole discretion, if all paperwork has been properly filed, award partial attorney or fiduciary fees when the Indiana Inheritance Schedule is filed or the Federal Estate Tax Return is filed. 

711.30 A guardian or guardian's attorney may petition for fees at the time of filing an inventory. Other than as provided hereafter, no further petition for fees may be filed until a biennial, annual, or final accounting has been filed. When unusual items of substantial work occur during the proceedings, the Court may consider a petition to allow fees for such services. 

711.40 No attorney or fiduciary fees will be determined and authorized for payment by the Court in any unsupervised administration of a decedent's estate. 

711.50 Where contracts for legal services have been entered into prior or subsequent to the opening of an estate or guardianship, the Court reserves the right to approve or disapprove the fee contracts consistent with this court's fee guidelines. 

711.60 All petitions for fees for the attorney and/or fiduciary shall conform to the guidelines for fees enumerated in 711.70 below and shall specifically set forth all services performed in detail as well as the amount of the fee requested and how it has been calculated. 

711.70 Pursuant to relevant statute, if a testator does not provide for compensation of the personal representative and/or the attorney performing services for the estate, the Court may award "just and reasonable" fees. In determining a "just and reasonable" amount of fees, the Court may consider several factors, including: the labor performed, the nature of the estate, difficulties in recovering assets or locating devises, and the peculiar qualifications of the administrator and/or attorney. Additionally, for attorneys, the Court may consider the guidelines for determining legal fees as set forth in Rule 1.5 of the Indiana Rules of Professional Conduct. In all fee determinations, the key factor considered by the Court will be that the fees are reasonably commensurate to the time and work involved. 

711.80 Unjustified delays in carrying out duties by the fiduciary and/or attorney will result in a reduction of fees. 

711.90 Attorney fees for representing a minor in settlement of a claim for personal injuries are subject to court approval. If the entire attorney fee is to be paid at the same time a structured settlement is approved, the amount of the fee must be based on the present value of the settlement.
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LR29-PR00-712. UNSUPERVISED ADMINISTRATION

712.10 No petition for administration without court supervision shall be granted unless the consent requirement of IC 29-1-7.5-2(a) is fulfilled. 

712.20 All court costs shall be paid and all claims satisfied and released on or before the date of the filing of the Closing Statement and a Clerk's Certification thereof (see attached form) shall be filed with the Court at the time such Closing Statement is filed with the Court. 

712.30 Every Closing Statement shall comply with LR29-PR00-710.10.

712.40 The Court will not enter an order approving the Closing Statement since such estate is closed by operation of law.
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LR29-PR00-713. MISCELLANEOUS

713.10 If the Court determines that no Inheritance Tax Schedule is required to be filed, a copy of the Court's order shall be served on the local representative of the Inheritance Tax Division of the Indiana Department of Revenue. 

713.20 The Court may adapt procedures by standing order to effectuate the implementation of these rules, and may deviate from these rules when justice requires, but only upon showing of severe prejudice or hardship.
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LR29-PR00-714. GUARDIANSHIPS

714.10 In all guardianship matters seeking to declare an adult incapacitated for any reason, the incapacitated person shall be present at the hearing or sufficient evidence shall be presented showing that the incapacitated person is unable to appear. The Court may at any time appoint a guardian ad litem to investigate and protect the best interest of the incapacitated person (Forms PR00-8, PR00-9). 

714.20 In all guardianship matters seeking to declare an adult incapacitated for any reason, a Physician's Report by the doctor treating the alleged incapacitated person or such additional evidence as the Court shall require, shall be presented to the Court at the time the petition is filed or on the hearing date. No determination will be made without a supporting medical report or testimony (Form PR00-10). 

714.30 Pursuant to IC 29-3-3-4(a) no guardian of an adult shall be appointed or protective order entered without notice except upon verified allegations that delay may result in immediate and irreparable injury to the person or loss or damage to the property. 

714.40 In every petition for the appointment of a guardian of the person of a minor child, the following information shall be given:

  1. The child's present address. 
  2. The places where the child has lived within the past two years and the names and present addresses of persons with whom the child has lived during that period. 
  3. General information concerning school, health, etc. 
  4. Whether, to petitioner's knowledge, any other litigation is pending concerning the custody of the child in this or any other state.
  5. Whether, to petitioner's knowledge, any person not a party to the guardianship proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child. 

714.50 Current reports filed by a guardian of the person shall state the present residence of the incapacitated person and his or her general welfare. If the incapacitated person is an adult, a report of a treating physician shall be filed with the current report, verifying that the incapacity of the person remains unchanged since the date the guardianship was established or the date of the last current report and that the living arrangements for the incapacitated person are appropriate (Forms PR00-10, PR00-11, PR00-12). 

714.60 Nothing herein shall be deemed as amending, superseding or altering the Probate Rules and Regulations promulgated by the Veteran's Administration of the United States of America, and every fiduciary and attorney shall comply with same, if applicable. 

714.70 Other than for routine matters, the guardian shall obtain court approval prior to taking any action on any financial matter pertaining to carrying out the guardian's duties and responsibilities for the protected person.
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LR29-PR00-715. WAIVER OF NOTICE OF INHERITANCE TAX APPRAISAL

715.10 Waivers of notice of the time and place of the appraisal of each property interest of a decedent for inheritance tax purposes and of the hearing on the appraisal report shall be filed on or before the date upon which the inheritance tax return is filed. 

715.20 Such waivers of notice shall be signed by each person known to have an interest in the property interests to be appraised and by any person designated by the Court. A waiver filed by an entity other than an individual shall state the capacity of the person who has signed for such entity. 

715.30 A waiver signed by an attorney or another person on behalf of a person who is entitled to notice under IC 6-4.1-5-3 and IC 6-4.1-5-9 shall include a copy of the power of attorney, letters of guardianship or other authority for the signer to act on behalf of such person. In the event that the interested person is a minor, the waiver shall include a statement of the relationship of the signer to the minor. 

715.40 In the event that a waiver is not filed for each interested person, the personal representative shall, at the time of filing the inheritance tax return, provide notice of the time and place of the appraisal to each interested person who has not filed a waiver. Upon the filing of the appraiser's report, the personal representative shall provide notice of the time and place of the hearing on the report to all persons known to be interested in the resident decedent's estate, including the Department of State Revenue.
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LR29-PR00-716. MINORS' SETTLEMENTS

716.10 This rule shall govern requests for approval of settlements for minors (pursuant to IC 29-3-9 and/or IC 29-3-4) and guardianships for minors, if such settlements are approved by the Court. 

716.20 A hearing shall be set at the request of counsel in which testimony or evidence is presented so as to fully and independently satisfy the Court that the requested settlement fully protects the minor's rights and interests. The Court may at any time appoint a guardian ad litem to protect the best interest of the minor and investigate such settlement (Forms PR00-8, PR00-13). 

716.30 In all settlement proceedings, whether wrongful death, minor's settlement or incapacitated person's settlement, the personal representative, one custodial parent or the guardian must be present at the time the settlement is presented to the Court for approval. The Court retains the right to require the presence of the minor or incapacitated person at such times. 

716.40 If the Court should grant such settlement and a guardianship is needed, then the appointment of a guardian will be determined as set forth by statute and by these rules. 

716.50 Once a guardian is appointed, then such guardian shall post bond pursuant to LR29-PR00-305.10, unless, in lieu of a bond, a fiduciary places all funds or assets in a restricted account at a federally-insured financial institution or in a court approved investment, designating that no principle or interest may be withdrawn without a written order of the Court, and with the following restriction placed on the face of the account or in the investment document (Forms PR00-5, PR00-14):

"NO PRINCIPAL OR INTEREST SHALL BE WITHDRAWN WITHOUT WRITTEN ORDER OF _____________________ COURT OF ___________________________, INDIANA."

  1. Prior to issuance of letters, the fiduciary's attorney shall execute an Attorney's Undertaking for such assets (Form PR00-15).
  2. Within ten (10) days of the order authorizing the creation of the account or investment, a certification by an officer of the institution at which the account or investment has been created, affirming that the account or investment is restricted as required by Court order and is in compliance with this rule. 

716.60 No surety bond or restricted account is required where a corporate fiduciary serves as a guardian of the estate. 

716.70 The guardian shall be required to file an inventory pursuant to LR29-PR00-705 unless such guardian has deposited all funds in a restricted account. 

716.80 When the guardian files an accounting pursuant to LR29-PR00-710, then such guardian shall be required to attach a copy of the most recent bank statement showing any and all transactions on such bank account (Forms PR00-12, PR00-16). 

716.90 Attorney fee awards must conform with LR29-PR00-711.
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LR29-PR00-717. WRONGFUL DEATH ESTATES

717.10 All proposed wrongful death settlements must be approved by the Court, whether the estate is supervised, unsupervised, or a special administration for the sole purpose of prosecuting the wrongful death claim. 

717.20 When an estate remains open one (1) year, the personal representative shall file a status report as to any wrongful death claims. If an action is pending, the report shall show the cause number and the Court. 

717.30 When a judgment has been paid or a petition for approval of settlement is filed in any estate, a petition shall be filed showing the proposed distribution in accordance with IC 34-1-1-2. Such petition must set out the proposed distribution to the appropriate statutory damage distributes, such as:

  1. Expenses of administration; 
  2. Providers of funeral and burial expenses; 
  3. Providers of medical expenses in connection with last illness of decedent; 
  4. Surviving spouse; 
  5. Dependent children; and 
  6. Dependent next of kin (if there is no surviving spouse or dependent children). 

A proposed order shall be presented to the Court, ordering distribution in accordance with IC 34-1-1-2 and requiring that a final account as to the wrongful death proceeds be filed within thirty (30) days. 

717.40 IC 34-1-1-8 does not provide for the opening of a minor's wrongful death estate.
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LR29-PR00-718. ADOPTIONS

718.10 Except for good cause shown, no final hearings in adoption proceedings shall take place until the adopting couple (or the birth parent and adoptive stepparent) have been married for at least one (1) year and the child has been in the home of the adoptive parent(s) for at least three (3) months. 

718.20 A consent to adoption must be notarized.
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