IC 29-1-1-1 Short title
Sec. 1. This article shall be known and may be cited as the
Probate Code. (Formerly: Acts 1953, c.112, s.101.) As amended by Acts 1982,
P.L.171, SEC.1.
IC 29-1-1-2 Procedure; prior proceedings or rights
Sec. 2. (a) The procedure herein prescribed shall govern all
proceedings in probate brought after January 1, 1954; and also all
further procedure in probate proceedings then pending, except to the
extent that in the opinion of the court their application in particular
proceedings or parts thereof would not be feasible or would work
injustice, in which event the former procedure shall apply.
(b) No act done in any proceeding commenced before January 1,
1954, and no accrued right, shall be impaired by its provisions. When
a right is acquired, extinguished or barred upon the expiration of a
prescribed period of time which has commenced to run by the
provision of the law in force at the time, such provision shall remain
in force and be deemed a part of this article with respect to such
right, and not withstanding any of the provisions of this article, the
person or persons who shall be entitled to take or receive any
property, right, power or interest on the final settlement and
distribution of any estate pending or any trust being administered on
January 1, 1954 shall be determined, and his or their rights, powers
and interest shall be governed by the statutes and applicable
decisions in force and effect immediately prior to January 1, 1954.
(c) If any provision of this article or the application thereof to any
person or circumstances is held invalid, such invalidity shall not
affect other provisions or applications of the article which can be
given effect without the invalid provision or application, and to this
end the provisions of this article are declared to be severable. (Formerly: Acts 1953, c.112, s.102.) As amended by Acts 1982,
P.L.171, SEC.2.
IC 29-1-1-3 Definitions; rules of construction
Sec. 3. (a) The following definitions apply throughout this article,
unless otherwise apparent from the context:
(1) "Child" includes an adopted child but does not include a
grandchild or other more remote descendants, nor, except as
provided in IC 29-1-2-5, a child born out of wedlock.
(2) "Claims" includes liabilities of a decedent which survive,
whether arising in contract or in tort or otherwise, funeral
expenses, the expense of a tombstone, expenses of
administration, and all taxes imposed by reason of the person's
death. However, for purposes of IC 29-1-2-1 and IC 29-1-3-1,
the term does not include taxes imposed by reason of the
person's death.
(3) "Court" means the court having probate jurisdiction.
(4) "Decedent" means one who dies testate or intestate.
(5) "Devise" or "legacy", when used as a noun, means a
testamentary disposition of either real or personal property or
both.
(6) "Devise", when used as a verb, means to dispose of either
real or personal property or both by will.
(7) "Devisee" includes legatee, and "legatee" includes devisee.
(8) "Distributee" denotes those persons who are entitled to the
real and personal property of a decedent under a will, under the
statutes of intestate succession, or under IC 29-1-4-1.
(9) "Estate" denotes the real and personal property of the
decedent or protected person, as from time to time changed in
form by sale, reinvestment, or otherwise, and augmented by any
accretions and additions thereto and substitutions therefor and
diminished by any decreases and distributions therefrom.
(10) "Fiduciary" includes a:
(A) personal representative;
(B) guardian;
(C) conservator;
(D) trustee; and
(E) person designated in a protective order to act on behalf
of a protected person.
(11) "Heirs" denotes those persons, including the surviving
spouse, who are entitled under the statutes of intestate
succession to the real and personal property of a decedent on
the decedent's death intestate, unless otherwise defined or
limited by the will.
(12) "Incapacitated" has the meaning set forth in IC 29-3-1-7.5.
(13) "Interested persons" means heirs, devisees, spouses,
creditors, or any others having a property right in or claim
against the estate of a decedent being administered. This
meaning may vary at different stages and different parts of a
proceeding and must be determined according to the particular
purpose and matter involved.
(14) "Issue" of a person, when used to refer to persons who take
by intestate succession, includes all lawful lineal descendants
except those who are lineal descendants of living lineal
descendants of the intestate.
(15) "Lease" includes an oil and gas lease or other mineral
lease.
(16) "Letters" includes letters testamentary, letters of
administration, and letters of guardianship.
(17) "Minor" or "minor child" or "minority" refers to any
person under the age of eighteen (18) years.
(18) "Mortgage" includes deed of trust, vendor's lien, and
chattel mortgage.
(19) "Net estate" refers to the real and personal property of a
decedent less the allowances provided under IC 29-1-4-1 and
enforceable claims against the estate.
(20) "Person" includes natural persons and corporations.
(21) "Personal property" includes interests in goods, money,
choses in action, evidences of debt, and chattels real.
(22) "Personal representative" includes executor, administrator,
administrator with the will annexed, administrator de bonis non,
and special administrator.
(23) "Property" includes both real and personal property.
(24) "Protected person" has the meaning set forth in
IC 29-3-1-13.
(25) "Real property" includes estates and interests in land,
corporeal or incorporeal, legal or equitable, other than chattels
real.
(26) "Will" includes all wills, testaments, and codicils. The term
also includes a testamentary instrument which merely appoints
an executor or revokes or revives another will.
(b) The following rules of construction apply throughout this
article unless otherwise apparent from the context:
(1) The singular number includes the plural and the plural
number includes the singular.
(2) The masculine gender includes the feminine and neuter. (Formerly: Acts 1953, c.112, s.103; Acts 1973, P.L.287, SEC.1.) As
amended by Acts 1979, P.L.268, SEC.1; P.L.146-1984, SEC.1;
P.L.152-1987, SEC.8; P.L.33-1989, SEC.31; P.L.254-1997(ss),
SEC.28; P.L.176-2003, SEC.2.
IC 29-1-1-4 Legislative history
Sec. 4. The report of the probate code study commission made
pursuant to Acts 1949, c. 302, s. 5 and Acts 1951, c. 347, s. 2 may be
consulted by the courts to determine the underlying reasons,
purposes and policies of this article, and may be used as a guide in
its construction and application. (Formerly: Acts 1953, c.112, s.104.) As amended by Acts 1982,
P.L.171, SEC.3.
IC 29-1-1-5
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-6 Disqualification of judges
Sec. 6. When any judge or his spouse shall be related within the
third degree of consanguinity, according to the civil law, to any of
the parties or their attorneys, shall have drawn the will of the
decedent, or shall be interested or have been counsel in any probate
proceeding or any matter therein, the same shall be grounds for
disqualifying such judge from acting in a controverted matter with
respect to which his disqualification exists. When grounds for
disqualification exist, the judge may refuse to act as judge therein;
or, upon filing of a petition to disqualify such judge, stating the
grounds therefor, by any person interested in the particular matter
with respect to which his disqualification exists, the judge must not
act therein. The grounds for disqualification stated herein are
enumerated as additional grounds, and not in limitation of applicable
grounds for disqualification provided by statute or by Supreme Court
rule with respect to trial judges generally. (Formerly: Acts 1953, c.112, s.106.)
IC 29-1-1-7 Rules and forms of procedure
Sec. 7. The court may promulgate rules and forms of procedure
for probate proceedings, not inconsistent with the provisions of this
article nor with such rules and forms as are promulgated by the
supreme court. If in any probate proceeding a situation arises which
is not provided for by any statute or rule of procedure, the court may
formulate and declare a rule of procedure for that particular case. (Formerly: Acts 1953, c.112, s.107.) As amended by Acts 1982,
P.L.171, SEC.4.
IC 29-1-1-8
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-9 Petitions
Sec. 9. Every application to the court, unless otherwise provided,
shall be by petition signed and verified by or on behalf of the
petitioner. No defect of form or substance in any petition, nor the
absence of a petition, shall invalidate any proceedings. Interests to be
affected shall be described in pleadings that give reasonable
information to owners by name or class, by reference to the
instrument creating the interests, or in another appropriate manner. (Formerly: Acts 1953, c.112, s.109.) As amended by P.L.118-1997,
SEC.6.
IC 29-1-1-10 Notice of filings; objections or answers
Sec. 10. Where, pursuant to law, order of court, or the request of
the moving party, notice of the filing of any report, account, claim,
petition, motion or other pleading to interested persons is required
before submission of the same to the court, any interested person, on
or before the day set for hearing, may file written objections or
answers thereto, and, upon special order or general rule of the court,
objections or answers thereto must be filed in writing as a
prerequisite of being heard by the court. (Formerly: Acts 1953, c.112, s.110.)
IC 29-1-1-11 Notice to interested persons
Sec. 11. No notice to interested persons need be given except as
specifically provided for in this article or as ordered by the court.
When no notice is required by this article, the court may require such
notice as it deems desirable by a general rule or by an order in a
particular case. Notice is required as follows:
(1) Notice as prescribed by this chapter must be given to every
interested person or to one who can bind an interested person as
described in section 20(a)(1) through 20(a)(3) of this chapter or
IC 29-3-2-4. Notice may be given both to a person and to
another who may bind him.
(2) Notice is given to unborn or unascertained persons, who are
not represented as described in section 20(a)(1) through
20(a)(3) of this chapter or IC 29-3-2-4, by giving notice to all
known persons whose interests in the proceedings are
substantially identical to those of the unborn or unascertained
persons. (Formerly: Acts 1953, c.112, s.111.) As amended by Acts 1982,
P.L.171, SEC.5; P.L.118-1997, SEC.7.
IC 29-1-1-12 Service of notice
Sec. 12. (a) Unless waived and except as otherwise provided by
law, all notices required by this article to be served upon any person
shall be served as the court shall direct by rule or in a particular case,
by:
(1) delivering a copy of the notice to the person or by leaving a
copy of the notice at the person's last and usual place of
residence, at least ten (10) days before the hearing, if the person
is a resident of the state of Indiana;
(2) publication, if the person is a nonresident of the state of
Indiana or if the person's residence is unknown, once each week
for three (3) weeks consecutively in a newspaper printed and
circulating in the county where the court is held, the first day of
publication to be at least thirty (30) days prior to the date set for
hearing; or in case there is no newspaper printed in the county,
then in a newspaper circulating in the county where the
proceeding is pending, and designated by the judge or clerk;
(3) first class postage prepaid mail addressed to the person
located in the United States, at the person's address stated in the
petition for the hearing, to be posted by depositing in any
United States post office in this state at least fourteen (14) days
prior to the date set for hearing in the notice;
(4) personal service on nonresidents to be served by any officer
authorized to serve process in the county of the nonresident,
which notice shall be served at least fourteen (14) days prior to
the date set for hearing in such notice; or
(5) any combination of two (2) or more of the above.
(b) In all cases where service by publication is ordered but
personal service or service by registered mail is not ordered, all
persons directed by the provisions of this article, or by order of the
court, to be notified, whose names and addresses are known or can
by reasonable diligence be ascertained by the party charged with the
duty of giving notice, shall in addition to the published notice
required by order, be served by a written notice by United States first
class postage prepaid mail at least fourteen (14) days prior to the date
set for hearing in the notice.
(c) The personal representative or party charged with the duty of
giving notice shall furnish the clerk with sufficient copies of the
notice, prepared for mailing, and the clerk shall mail the notice. (Formerly: Acts 1953, c.112, s.112; Acts 1955, c.258, s.1; Acts 1961,
c.50, s.2.) As amended by Acts 1982, P.L.171, SEC.6; P.L.118-1997,
SEC.8; P.L.95-2007, SEC.3.
IC 29-1-1-13 Service by publication and mail; personal service
Sec. 13. Service by publication and by mail shall be made by the
clerk at the instance of the party who requires such service to be
made. Personal service may be made by any competent person unless
otherwise directed by the court or the provisions of this article. (Formerly: Acts 1953, c.112, s.113.) As amended by Acts 1982,
P.L.171, SEC.7.
IC 29-1-1-14 Service upon attorney
Sec. 14. (a) If an attorney shall have entered his appearance in
writing for any person in any probate proceeding or matter pending
in the court, all notices required to be served on the person in such
proceeding or matter may be served on the attorney and such service
shall be in lieu of service upon the person for whom the attorney
appears.
(b) Notices to the personal representative may similarly be served
on his attorney of record. (Formerly: Acts 1953, c.112, s.114.)
IC 29-1-1-15 Form of notice
Sec. 15. The form of such notice may be prescribed by the court
by rule or order. A notice shall be deemed sufficient if it shall set
forth the nature of the petition or paper filed or the action requested,
and the time fixed for hearing thereof, or the time fixed for filing a
responsive pleading. or objections thereto.
(Formerly: Acts 1953, c.112, s.115.)
IC 29-1-1-16 Proof of service; filing
Sec. 16. Proof of service in all cases requiring notice, whether by
publication, mailing or otherwise, shall be filed before the hearing.
Service made by a private person shall be proved by the affidavit of
the person; service made by the clerk or other official shall be proved
by certificate or return of service. (Formerly: Acts 1953, c.112, s.116.)
IC 29-1-1-17 Proof of service as evidence
Sec. 17. Such proof of service shall be received in evidence in any
court in this state, and be deemed sufficient proof of the matters and
things therein contained. (Formerly: Acts 1953, c.112, s.117.)
IC 29-1-1-18 Notices; proof of compliance
Sec. 18. Nothing contained in section 16 or section 17 of this
chapter shall preclude any person from proving in any suit or
proceeding that the provisions of this article respecting such notice
have been complied with, although no such proof of service may
have been filed as therein required. (Formerly: Acts 1953, c.112, s.118.) As amended by Acts 1982,
P.L.171, SEC.8.
IC 29-1-1-19 Notice of hearing; waiver
Sec. 19. Any person legally competent who is required to be
served with notice of any hearing in a probate proceeding may in
person or by attorney waive in writing issuance and service of notice
of the hearing. A guardian of the estate or a guardian ad litem may
make the waiver on behalf of a protected person. A consul or other
representative of a foreign government, whose appearance has been
entered as provided by law on behalf of a person residing in a foreign
country, may make a waiver of notice on behalf of the person. Any
person who submits to the jurisdiction of the court in any hearing
shall be deemed to have waived notice. (Formerly: Acts 1953, c.112, s.119.) As amended by P.L.33-1989,
SEC.32.
IC 29-1-1-20 Incapacitated persons; unknown persons; guardians
Sec. 20. (a) In a proceeding involving estates of decedents or
trusts, or in judicially supervised settlements, persons are bound by
orders binding others in the following cases:
(1) Orders binding the sole holder or all co-holders of a power
of revocation or a presently exercisable general power of
appointment, including one in the form of a power of
amendment, bind other persons to the extent their interests (as
objects, takers in default, or otherwise) are subject to the power.
(2) Orders binding a trustee bind beneficiaries of the trust in
proceedings:
(A) to probate a will establishing or adding to a trust;
(B) to review the acts or accounts of a prior fiduciary; and
(C) involving creditors or other third parties.
(3) Orders binding a personal representative bind persons
interested in the undistributed assets of a decedent's estate in
actions or proceedings by or against the estate. If there is no
conflict of interest and no guardian of the estate or person has
been appointed, a parent may represent the parent's minor child.
(4) An interested person:
(A) who is incapacitated;
(B) whose present name, existence, or residence upon
diligent inquiry is unknown and cannot be ascertained; or
(C) who is not otherwise represented;
is bound by an order to the extent the person's interest is
adequately represented by another party having a substantially
identical interest in the proceeding.
(b) At any point in a proceeding, a court may appoint a guardian
ad litem to represent the interest of a minor, an incapacitated, unborn,
or unascertained person, or a person whose identity or address is
unknown, if the court determines that representation of the interest
otherwise would be inadequate. If not precluded by conflict of
interests, a guardian ad litem may be appointed to represent several
persons or interests. The court shall set out its reasons for appointing
a guardian ad litem as a part of the record of the proceeding. Any
guardian of the person or estate of the person having an interest may
be appointed as a guardian ad litem.
(c) The compensation of a guardian or guardian ad litem and the
guardian's expenses including attorney's fees for services rendered in
any proceeding under this article may be allowed in such amount and
ordered paid either out of the entire estate involved as an expense of
administration, or out of the protected person's interest therein as the
court in its discretion shall determine.
(d) Any adjudication involving the interests of persons considered
represented under this section shall be lawful and binding upon all
interested persons, whether born or unborn, whether notified or not
notified, and whether represented or not, if the interested persons are
of the same class or have interests similar to the predominant
interests of any person notified or represented. (Formerly: Acts 1953, c.112, s.120.) As amended by Acts 1982,
P.L.171, SEC.9; P.L.33-1989, SEC.33; P.L.118-1997, SEC.9.
IC 29-1-1-21 Orders, judgments, or decrees; vacating or modifying
Sec. 21. For illegality, fraud or mistake, upon application filed
within one (1) year after the discharge of the personal representative
upon final settlement, the court may vacate or modify its orders,
judgments and decrees or grant a rehearing therein. Before any such
order, judgment or decree shall be vacated or modified, notice of
such application and hearing shall be given to the personal
representative and all interested persons as provided in section 12 of
this chapter. No vacation or modification under this section shall
affect any right acquired by any innocent person in reliance upon any
such previous order, judgment or decree. (Formerly: Acts 1953, c.112, s.121.) As amended by Acts 1982,
P.L.171, SEC.10.
IC 29-1-1-22 Appeals; stay of proceedings
Sec. 22. Any person considering himself aggrieved by any
decision of a court having probate jurisdiction in proceedings under
this article may prosecute an appeal to the court having jurisdiction
of such appeal. Such appeal shall be taken as appeals are taken in
civil causes. Executors, administrators, guardians and fiduciaries
may have a stay of proceedings without bond. (Formerly: Acts 1953, c.112, s.122.) As amended by Acts 1982,
P.L.171, SEC.11.
IC 29-1-1-23 Record of proceedings; dockets
Sec. 23. The following records of proceedings under this article
shall be maintained in addition to other records as the court having
probate jurisdiction shall provide for:
(1) An index in which estates of deceased persons shall be
indexed under the name of the decedent, and those pertaining to
guardianships under the name of the protected person. After the
name of each shall be shown the docket number and page
wherein entries pertaining to such decedent's or ward's estate
appear.
(2) Decedent's and guardianship estate dockets, in which shall
be listed in chronological order under the name of the decedent
or protected person, all documents filed or issued and all orders,
judgments, and decrees made pertaining to the estate, the date,
and a reference to the volume and page of any other book in
which any record shall have been made of such document.
(3) A record of wills, properly indexed, in which shall be
recorded all wills admitted to probate and a record of the
testimony of a witness examined, subscribed by the witness and
attested by the clerk with the clerk's signature and seal of office.
The will with the testimony and attestation to be certified by the
clerk to be a complete record.
(4) An order book, in which shall be entered all proceedings
with respect to the estate in conformity with the law pertaining
to order books of circuit courts of this state and with the rules
of the court. (Formerly: Acts 1953, c.112, s.123.) As amended by Acts 1982,
IC 29-1-1-24 Fraud; relief for injured parties
Sec. 24. Whenever fraud has been perpetrated in connection with
any proceeding or in any statement filed under this probate code or
if fraud is used to avoid or circumvent the provisions or purposes of
this probate code, any person injured thereby may obtain appropriate
relief against the perpetrator of the fraud including restitution from
any person (other than a bona fide purchaser) benefiting from the
fraud, whether innocent or not. This section has no bearing on
remedies relating to fraud practiced on a decedent during his lifetime
which affects the succession of his estate. (Formerly: Acts 1975, P.L.288, SEC.1.)
IC 29-1-1-1 Short title
Sec. 1. This article shall be known and may be cited as the
Probate Code. (Formerly: Acts 1953, c.112, s.101.) As amended by Acts 1982,
P.L.171, SEC.1.
IC 29-1-1-2 Procedure; prior proceedings or rights
Sec. 2. (a) The procedure herein prescribed shall govern all
proceedings in probate brought after January 1, 1954; and also all
further procedure in probate proceedings then pending, except to the
extent that in the opinion of the court their application in particular
proceedings or parts thereof would not be feasible or would work
injustice, in which event the former procedure shall apply.
(b) No act done in any proceeding commenced before January 1,
1954, and no accrued right, shall be impaired by its provisions. When
a right is acquired, extinguished or barred upon the expiration of a
prescribed period of time which has commenced to run by the
provision of the law in force at the time, such provision shall remain
in force and be deemed a part of this article with respect to such
right, and not withstanding any of the provisions of this article, the
person or persons who shall be entitled to take or receive any
property, right, power or interest on the final settlement and
distribution of any estate pending or any trust being administered on
January 1, 1954 shall be determined, and his or their rights, powers
and interest shall be governed by the statutes and applicable
decisions in force and effect immediately prior to January 1, 1954.
(c) If any provision of this article or the application thereof to any
person or circumstances is held invalid, such invalidity shall not
affect other provisions or applications of the article which can be
given effect without the invalid provision or application, and to this
end the provisions of this article are declared to be severable. (Formerly: Acts 1953, c.112, s.102.) As amended by Acts 1982,
P.L.171, SEC.2.
IC 29-1-1-3 Definitions; rules of construction
Sec. 3. (a) The following definitions apply throughout this article,
unless otherwise apparent from the context:
(1) "Child" includes an adopted child but does not include a
grandchild or other more remote descendants, nor, except as
provided in IC 29-1-2-5, a child born out of wedlock.
(2) "Claims" includes liabilities of a decedent which survive,
whether arising in contract or in tort or otherwise, funeral
expenses, the expense of a tombstone, expenses of
administration, and all taxes imposed by reason of the person's
death. However, for purposes of IC 29-1-2-1 and IC 29-1-3-1,
the term does not include taxes imposed by reason of the
person's death.
(3) "Court" means the court having probate jurisdiction.
(4) "Decedent" means one who dies testate or intestate.
(5) "Devise" or "legacy", when used as a noun, means a
testamentary disposition of either real or personal property or
both.
(6) "Devise", when used as a verb, means to dispose of either
real or personal property or both by will.
(7) "Devisee" includes legatee, and "legatee" includes devisee.
(8) "Distributee" denotes those persons who are entitled to the
real and personal property of a decedent under a will, under the
statutes of intestate succession, or under IC 29-1-4-1.
(9) "Estate" denotes the real and personal property of the
decedent or protected person, as from time to time changed in
form by sale, reinvestment, or otherwise, and augmented by any
accretions and additions thereto and substitutions therefor and
diminished by any decreases and distributions therefrom.
(10) "Fiduciary" includes a:
(A) personal representative;
(B) guardian;
(C) conservator;
(D) trustee; and
(E) person designated in a protective order to act on behalf
of a protected person.
(11) "Heirs" denotes those persons, including the surviving
spouse, who are entitled under the statutes of intestate
succession to the real and personal property of a decedent on
the decedent's death intestate, unless otherwise defined or
limited by the will.
(12) "Incapacitated" has the meaning set forth in IC 29-3-1-7.5.
(13) "Interested persons" means heirs, devisees, spouses,
creditors, or any others having a property right in or claim
against the estate of a decedent being administered. This
meaning may vary at different stages and different parts of a
proceeding and must be determined according to the particular
purpose and matter involved.
(14) "Issue" of a person, when used to refer to persons who take
by intestate succession, includes all lawful lineal descendants
except those who are lineal descendants of living lineal
descendants of the intestate.
(15) "Lease" includes an oil and gas lease or other mineral
lease.
(16) "Letters" includes letters testamentary, letters of
administration, and letters of guardianship.
(17) "Minor" or "minor child" or "minority" refers to any
person under the age of eighteen (18) years.
(18) "Mortgage" includes deed of trust, vendor's lien, and
chattel mortgage.
(19) "Net estate" refers to the real and personal property of a
decedent less the allowances provided under IC 29-1-4-1 and
enforceable claims against the estate.
(20) "Person" includes natural persons and corporations.
(21) "Personal property" includes interests in goods, money,
choses in action, evidences of debt, and chattels real.
(22) "Personal representative" includes executor, administrator,
administrator with the will annexed, administrator de bonis non,
and special administrator.
(23) "Property" includes both real and personal property.
(24) "Protected person" has the meaning set forth in
IC 29-3-1-13.
(25) "Real property" includes estates and interests in land,
corporeal or incorporeal, legal or equitable, other than chattels
real.
(26) "Will" includes all wills, testaments, and codicils. The term
also includes a testamentary instrument which merely appoints
an executor or revokes or revives another will.
(b) The following rules of construction apply throughout this
article unless otherwise apparent from the context:
(1) The singular number includes the plural and the plural
number includes the singular.
(2) The masculine gender includes the feminine and neuter. (Formerly: Acts 1953, c.112, s.103; Acts 1973, P.L.287, SEC.1.) As
amended by Acts 1979, P.L.268, SEC.1; P.L.146-1984, SEC.1;
P.L.152-1987, SEC.8; P.L.33-1989, SEC.31; P.L.254-1997(ss),
SEC.28; P.L.176-2003, SEC.2.
IC 29-1-1-4 Legislative history
Sec. 4. The report of the probate code study commission made
pursuant to Acts 1949, c. 302, s. 5 and Acts 1951, c. 347, s. 2 may be
consulted by the courts to determine the underlying reasons,
purposes and policies of this article, and may be used as a guide in
its construction and application. (Formerly: Acts 1953, c.112, s.104.) As amended by Acts 1982,
P.L.171, SEC.3.
IC 29-1-1-5
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-6 Disqualification of judges
Sec. 6. When any judge or his spouse shall be related within the
third degree of consanguinity, according to the civil law, to any of
the parties or their attorneys, shall have drawn the will of the
decedent, or shall be interested or have been counsel in any probate
proceeding or any matter therein, the same shall be grounds for
disqualifying such judge from acting in a controverted matter with
respect to which his disqualification exists. When grounds for
disqualification exist, the judge may refuse to act as judge therein;
or, upon filing of a petition to disqualify such judge, stating the
grounds therefor, by any person interested in the particular matter
with respect to which his disqualification exists, the judge must not
act therein. The grounds for disqualification stated herein are
enumerated as additional grounds, and not in limitation of applicable
grounds for disqualification provided by statute or by Supreme Court
rule with respect to trial judges generally. (Formerly: Acts 1953, c.112, s.106.)
IC 29-1-1-7 Rules and forms of procedure
Sec. 7. The court may promulgate rules and forms of procedure
for probate proceedings, not inconsistent with the provisions of this
article nor with such rules and forms as are promulgated by the
supreme court. If in any probate proceeding a situation arises which
is not provided for by any statute or rule of procedure, the court may
formulate and declare a rule of procedure for that particular case. (Formerly: Acts 1953, c.112, s.107.) As amended by Acts 1982,
P.L.171, SEC.4.
IC 29-1-1-8
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-9 Petitions
Sec. 9. Every application to the court, unless otherwise provided,
shall be by petition signed and verified by or on behalf of the
petitioner. No defect of form or substance in any petition, nor the
absence of a petition, shall invalidate any proceedings. Interests to be
affected shall be described in pleadings that give reasonable
information to owners by name or class, by reference to the
instrument creating the interests, or in another appropriate manner. (Formerly: Acts 1953, c.112, s.109.) As amended by P.L.118-1997,
SEC.6.
IC 29-1-1-10 Notice of filings; objections or answers
Sec. 10. Where, pursuant to law, order of court, or the request of
the moving party, notice of the filing of any report, account, claim,
petition, motion or other pleading to interested persons is required
before submission of the same to the court, any interested person, on
or before the day set for hearing, may file written objections or
answers thereto, and, upon special order or general rule of the court,
objections or answers thereto must be filed in writing as a
prerequisite of being heard by the court. (Formerly: Acts 1953, c.112, s.110.)
IC 29-1-1-11 Notice to interested persons
Sec. 11. No notice to interested persons need be given except as
specifically provided for in this article or as ordered by the court.
When no notice is required by this article, the court may require such
notice as it deems desirable by a general rule or by an order in a
particular case. Notice is required as follows:
(1) Notice as prescribed by this chapter must be given to every
interested person or to one who can bind an interested person as
described in section 20(a)(1) through 20(a)(3) of this chapter or
IC 29-3-2-4. Notice may be given both to a person and to
another who may bind him.
(2) Notice is given to unborn or unascertained persons, who are
not represented as described in section 20(a)(1) through
20(a)(3) of this chapter or IC 29-3-2-4, by giving notice to all
known persons whose interests in the proceedings are
substantially identical to those of the unborn or unascertained
persons. (Formerly: Acts 1953, c.112, s.111.) As amended by Acts 1982,
P.L.171, SEC.5; P.L.118-1997, SEC.7.
IC 29-1-1-12 Service of notice
Sec. 12. (a) Unless waived and except as otherwise provided by
law, all notices required by this article to be served upon any person
shall be served as the court shall direct by rule or in a particular case,
by:
(1) delivering a copy of the notice to the person or by leaving a
copy of the notice at the person's last and usual place of
residence, at least ten (10) days before the hearing, if the person
is a resident of the state of Indiana;
(2) publication, if the person is a nonresident of the state of
Indiana or if the person's residence is unknown, once each week
for three (3) weeks consecutively in a newspaper printed and
circulating in the county where the court is held, the first day of
publication to be at least thirty (30) days prior to the date set for
hearing; or in case there is no newspaper printed in the county,
then in a newspaper circulating in the county where the
proceeding is pending, and designated by the judge or clerk;
(3) first class postage prepaid mail addressed to the person
located in the United States, at the person's address stated in the
petition for the hearing, to be posted by depositing in any
United States post office in this state at least fourteen (14) days
prior to the date set for hearing in the notice;
(4) personal service on nonresidents to be served by any officer
authorized to serve process in the county of the nonresident,
which notice shall be served at least fourteen (14) days prior to
the date set for hearing in such notice; or
(5) any combination of two (2) or more of the above.
(b) In all cases where service by publication is ordered but
personal service or service by registered mail is not ordered, all
persons directed by the provisions of this article, or by order of the
court, to be notified, whose names and addresses are known or can
by reasonable diligence be ascertained by the party charged with the
duty of giving notice, shall in addition to the published notice
required by order, be served by a written notice by United States first
class postage prepaid mail at least fourteen (14) days prior to the date
set for hearing in the notice.
(c) The personal representative or party charged with the duty of
giving notice shall furnish the clerk with sufficient copies of the
notice, prepared for mailing, and the clerk shall mail the notice. (Formerly: Acts 1953, c.112, s.112; Acts 1955, c.258, s.1; Acts 1961,
c.50, s.2.) As amended by Acts 1982, P.L.171, SEC.6; P.L.118-1997,
SEC.8; P.L.95-2007, SEC.3.
IC 29-1-1-13 Service by publication and mail; personal service
Sec. 13. Service by publication and by mail shall be made by the
clerk at the instance of the party who requires such service to be
made. Personal service may be made by any competent person unless
otherwise directed by the court or the provisions of this article. (Formerly: Acts 1953, c.112, s.113.) As amended by Acts 1982,
P.L.171, SEC.7.
IC 29-1-1-14 Service upon attorney
Sec. 14. (a) If an attorney shall have entered his appearance in
writing for any person in any probate proceeding or matter pending
in the court, all notices required to be served on the person in such
proceeding or matter may be served on the attorney and such service
shall be in lieu of service upon the person for whom the attorney
appears.
(b) Notices to the personal representative may similarly be served
on his attorney of record. (Formerly: Acts 1953, c.112, s.114.)
IC 29-1-1-15 Form of notice
Sec. 15. The form of such notice may be prescribed by the court
by rule or order. A notice shall be deemed sufficient if it shall set
forth the nature of the petition or paper filed or the action requested,
and the time fixed for hearing thereof, or the time fixed for filing a
responsive pleading. or objections thereto.
(Formerly: Acts 1953, c.112, s.115.)
IC 29-1-1-16 Proof of service; filing
Sec. 16. Proof of service in all cases requiring notice, whether by
publication, mailing or otherwise, shall be filed before the hearing.
Service made by a private person shall be proved by the affidavit of
the person; service made by the clerk or other official shall be proved
by certificate or return of service. (Formerly: Acts 1953, c.112, s.116.)
IC 29-1-1-17 Proof of service as evidence
Sec. 17. Such proof of service shall be received in evidence in any
court in this state, and be deemed sufficient proof of the matters and
things therein contained. (Formerly: Acts 1953, c.112, s.117.)
IC 29-1-1-18 Notices; proof of compliance
Sec. 18. Nothing contained in section 16 or section 17 of this
chapter shall preclude any person from proving in any suit or
proceeding that the provisions of this article respecting such notice
have been complied with, although no such proof of service may
have been filed as therein required. (Formerly: Acts 1953, c.112, s.118.) As amended by Acts 1982,
P.L.171, SEC.8.
IC 29-1-1-19 Notice of hearing; waiver
Sec. 19. Any person legally competent who is required to be
served with notice of any hearing in a probate proceeding may in
person or by attorney waive in writing issuance and service of notice
of the hearing. A guardian of the estate or a guardian ad litem may
make the waiver on behalf of a protected person. A consul or other
representative of a foreign government, whose appearance has been
entered as provided by law on behalf of a person residing in a foreign
country, may make a waiver of notice on behalf of the person. Any
person who submits to the jurisdiction of the court in any hearing
shall be deemed to have waived notice. (Formerly: Acts 1953, c.112, s.119.) As amended by P.L.33-1989,
SEC.32.
IC 29-1-1-20 Incapacitated persons; unknown persons; guardians
Sec. 20. (a) In a proceeding involving estates of decedents or
trusts, or in judicially supervised settlements, persons are bound by
orders binding others in the following cases:
(1) Orders binding the sole holder or all co-holders of a power
of revocation or a presently exercisable general power of
appointment, including one in the form of a power of
amendment, bind other persons to the extent their interests (as
objects, takers in default, or otherwise) are subject to the power.
(2) Orders binding a trustee bind beneficiaries of the trust in
proceedings:
(A) to probate a will establishing or adding to a trust;
(B) to review the acts or accounts of a prior fiduciary; and
(C) involving creditors or other third parties.
(3) Orders binding a personal representative bind persons
interested in the undistributed assets of a decedent's estate in
actions or proceedings by or against the estate. If there is no
conflict of interest and no guardian of the estate or person has
been appointed, a parent may represent the parent's minor child.
(4) An interested person:
(A) who is incapacitated;
(B) whose present name, existence, or residence upon
diligent inquiry is unknown and cannot be ascertained; or
(C) who is not otherwise represented;
is bound by an order to the extent the person's interest is
adequately represented by another party having a substantially
identical interest in the proceeding.
(b) At any point in a proceeding, a court may appoint a guardian
ad litem to represent the interest of a minor, an incapacitated, unborn,
or unascertained person, or a person whose identity or address is
unknown, if the court determines that representation of the interest
otherwise would be inadequate. If not precluded by conflict of
interests, a guardian ad litem may be appointed to represent several
persons or interests. The court shall set out its reasons for appointing
a guardian ad litem as a part of the record of the proceeding. Any
guardian of the person or estate of the person having an interest may
be appointed as a guardian ad litem.
(c) The compensation of a guardian or guardian ad litem and the
guardian's expenses including attorney's fees for services rendered in
any proceeding under this article may be allowed in such amount and
ordered paid either out of the entire estate involved as an expense of
administration, or out of the protected person's interest therein as the
court in its discretion shall determine.
(d) Any adjudication involving the interests of persons considered
represented under this section shall be lawful and binding upon all
interested persons, whether born or unborn, whether notified or not
notified, and whether represented or not, if the interested persons are
of the same class or have interests similar to the predominant
interests of any person notified or represented. (Formerly: Acts 1953, c.112, s.120.) As amended by Acts 1982,
P.L.171, SEC.9; P.L.33-1989, SEC.33; P.L.118-1997, SEC.9.
IC 29-1-1-21 Orders, judgments, or decrees; vacating or modifying
Sec. 21. For illegality, fraud or mistake, upon application filed
within one (1) year after the discharge of the personal representative
upon final settlement, the court may vacate or modify its orders,
judgments and decrees or grant a rehearing therein. Before any such
order, judgment or decree shall be vacated or modified, notice of
such application and hearing shall be given to the personal
representative and all interested persons as provided in section 12 of
this chapter. No vacation or modification under this section shall
affect any right acquired by any innocent person in reliance upon any
such previous order, judgment or decree. (Formerly: Acts 1953, c.112, s.121.) As amended by Acts 1982,
P.L.171, SEC.10.
IC 29-1-1-22 Appeals; stay of proceedings
Sec. 22. Any person considering himself aggrieved by any
decision of a court having probate jurisdiction in proceedings under
this article may prosecute an appeal to the court having jurisdiction
of such appeal. Such appeal shall be taken as appeals are taken in
civil causes. Executors, administrators, guardians and fiduciaries
may have a stay of proceedings without bond. (Formerly: Acts 1953, c.112, s.122.) As amended by Acts 1982,
P.L.171, SEC.11.
IC 29-1-1-23 Record of proceedings; dockets
Sec. 23. The following records of proceedings under this article
shall be maintained in addition to other records as the court having
probate jurisdiction shall provide for:
(1) An index in which estates of deceased persons shall be
indexed under the name of the decedent, and those pertaining to
guardianships under the name of the protected person. After the
name of each shall be shown the docket number and page
wherein entries pertaining to such decedent's or ward's estate
appear.
(2) Decedent's and guardianship estate dockets, in which shall
be listed in chronological order under the name of the decedent
or protected person, all documents filed or issued and all orders,
judgments, and decrees made pertaining to the estate, the date,
and a reference to the volume and page of any other book in
which any record shall have been made of such document.
(3) A record of wills, properly indexed, in which shall be
recorded all wills admitted to probate and a record of the
testimony of a witness examined, subscribed by the witness and
attested by the clerk with the clerk's signature and seal of office.
The will with the testimony and attestation to be certified by the
clerk to be a complete record.
(4) An order book, in which shall be entered all proceedings
with respect to the estate in conformity with the law pertaining
to order books of circuit courts of this state and with the rules
of the court. (Formerly: Acts 1953, c.112, s.123.) As amended by Acts 1982,
IC 29-1-1-24 Fraud; relief for injured parties
Sec. 24. Whenever fraud has been perpetrated in connection with
any proceeding or in any statement filed under this probate code or
if fraud is used to avoid or circumvent the provisions or purposes of
this probate code, any person injured thereby may obtain appropriate
relief against the perpetrator of the fraud including restitution from
any person (other than a bona fide purchaser) benefiting from the
fraud, whether innocent or not. This section has no bearing on
remedies relating to fraud practiced on a decedent during his lifetime
which affects the succession of his estate. (Formerly: Acts 1975, P.L.288, SEC.1.)
IC 29-1-1-1 Short title
Sec. 1. This article shall be known and may be cited as the
Probate Code. (Formerly: Acts 1953, c.112, s.101.) As amended by Acts 1982,
P.L.171, SEC.1.
IC 29-1-1-2 Procedure; prior proceedings or rights
Sec. 2. (a) The procedure herein prescribed shall govern all
proceedings in probate brought after January 1, 1954; and also all
further procedure in probate proceedings then pending, except to the
extent that in the opinion of the court their application in particular
proceedings or parts thereof would not be feasible or would work
injustice, in which event the former procedure shall apply.
(b) No act done in any proceeding commenced before January 1,
1954, and no accrued right, shall be impaired by its provisions. When
a right is acquired, extinguished or barred upon the expiration of a
prescribed period of time which has commenced to run by the
provision of the law in force at the time, such provision shall remain
in force and be deemed a part of this article with respect to such
right, and not withstanding any of the provisions of this article, the
person or persons who shall be entitled to take or receive any
property, right, power or interest on the final settlement and
distribution of any estate pending or any trust being administered on
January 1, 1954 shall be determined, and his or their rights, powers
and interest shall be governed by the statutes and applicable
decisions in force and effect immediately prior to January 1, 1954.
(c) If any provision of this article or the application thereof to any
person or circumstances is held invalid, such invalidity shall not
affect other provisions or applications of the article which can be
given effect without the invalid provision or application, and to this
end the provisions of this article are declared to be severable. (Formerly: Acts 1953, c.112, s.102.) As amended by Acts 1982,
P.L.171, SEC.2.
IC 29-1-1-3 Definitions; rules of construction
Sec. 3. (a) The following definitions apply throughout this article,
unless otherwise apparent from the context:
(1) "Child" includes an adopted child but does not include a
grandchild or other more remote descendants, nor, except as
provided in IC 29-1-2-5, a child born out of wedlock.
(2) "Claims" includes liabilities of a decedent which survive,
whether arising in contract or in tort or otherwise, funeral
expenses, the expense of a tombstone, expenses of
administration, and all taxes imposed by reason of the person's
death. However, for purposes of IC 29-1-2-1 and IC 29-1-3-1,
the term does not include taxes imposed by reason of the
person's death.
(3) "Court" means the court having probate jurisdiction.
(4) "Decedent" means one who dies testate or intestate.
(5) "Devise" or "legacy", when used as a noun, means a
testamentary disposition of either real or personal property or
both.
(6) "Devise", when used as a verb, means to dispose of either
real or personal property or both by will.
(7) "Devisee" includes legatee, and "legatee" includes devisee.
(8) "Distributee" denotes those persons who are entitled to the
real and personal property of a decedent under a will, under the
statutes of intestate succession, or under IC 29-1-4-1.
(9) "Estate" denotes the real and personal property of the
decedent or protected person, as from time to time changed in
form by sale, reinvestment, or otherwise, and augmented by any
accretions and additions thereto and substitutions therefor and
diminished by any decreases and distributions therefrom.
(10) "Fiduciary" includes a:
(A) personal representative;
(B) guardian;
(C) conservator;
(D) trustee; and
(E) person designated in a protective order to act on behalf
of a protected person.
(11) "Heirs" denotes those persons, including the surviving
spouse, who are entitled under the statutes of intestate
succession to the real and personal property of a decedent on
the decedent's death intestate, unless otherwise defined or
limited by the will.
(12) "Incapacitated" has the meaning set forth in IC 29-3-1-7.5.
(13) "Interested persons" means heirs, devisees, spouses,
creditors, or any others having a property right in or claim
against the estate of a decedent being administered. This
meaning may vary at different stages and different parts of a
proceeding and must be determined according to the particular
purpose and matter involved.
(14) "Issue" of a person, when used to refer to persons who take
by intestate succession, includes all lawful lineal descendants
except those who are lineal descendants of living lineal
descendants of the intestate.
(15) "Lease" includes an oil and gas lease or other mineral
lease.
(16) "Letters" includes letters testamentary, letters of
administration, and letters of guardianship.
(17) "Minor" or "minor child" or "minority" refers to any
person under the age of eighteen (18) years.
(18) "Mortgage" includes deed of trust, vendor's lien, and
chattel mortgage.
(19) "Net estate" refers to the real and personal property of a
decedent less the allowances provided under IC 29-1-4-1 and
enforceable claims against the estate.
(20) "Person" includes natural persons and corporations.
(21) "Personal property" includes interests in goods, money,
choses in action, evidences of debt, and chattels real.
(22) "Personal representative" includes executor, administrator,
administrator with the will annexed, administrator de bonis non,
and special administrator.
(23) "Property" includes both real and personal property.
(24) "Protected person" has the meaning set forth in
IC 29-3-1-13.
(25) "Real property" includes estates and interests in land,
corporeal or incorporeal, legal or equitable, other than chattels
real.
(26) "Will" includes all wills, testaments, and codicils. The term
also includes a testamentary instrument which merely appoints
an executor or revokes or revives another will.
(b) The following rules of construction apply throughout this
article unless otherwise apparent from the context:
(1) The singular number includes the plural and the plural
number includes the singular.
(2) The masculine gender includes the feminine and neuter. (Formerly: Acts 1953, c.112, s.103; Acts 1973, P.L.287, SEC.1.) As
amended by Acts 1979, P.L.268, SEC.1; P.L.146-1984, SEC.1;
P.L.152-1987, SEC.8; P.L.33-1989, SEC.31; P.L.254-1997(ss),
SEC.28; P.L.176-2003, SEC.2.
IC 29-1-1-4 Legislative history
Sec. 4. The report of the probate code study commission made
pursuant to Acts 1949, c. 302, s. 5 and Acts 1951, c. 347, s. 2 may be
consulted by the courts to determine the underlying reasons,
purposes and policies of this article, and may be used as a guide in
its construction and application. (Formerly: Acts 1953, c.112, s.104.) As amended by Acts 1982,
P.L.171, SEC.3.
IC 29-1-1-5
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-6 Disqualification of judges
Sec. 6. When any judge or his spouse shall be related within the
third degree of consanguinity, according to the civil law, to any of
the parties or their attorneys, shall have drawn the will of the
decedent, or shall be interested or have been counsel in any probate
proceeding or any matter therein, the same shall be grounds for
disqualifying such judge from acting in a controverted matter with
respect to which his disqualification exists. When grounds for
disqualification exist, the judge may refuse to act as judge therein;
or, upon filing of a petition to disqualify such judge, stating the
grounds therefor, by any person interested in the particular matter
with respect to which his disqualification exists, the judge must not
act therein. The grounds for disqualification stated herein are
enumerated as additional grounds, and not in limitation of applicable
grounds for disqualification provided by statute or by Supreme Court
rule with respect to trial judges generally. (Formerly: Acts 1953, c.112, s.106.)
IC 29-1-1-7 Rules and forms of procedure
Sec. 7. The court may promulgate rules and forms of procedure
for probate proceedings, not inconsistent with the provisions of this
article nor with such rules and forms as are promulgated by the
supreme court. If in any probate proceeding a situation arises which
is not provided for by any statute or rule of procedure, the court may
formulate and declare a rule of procedure for that particular case. (Formerly: Acts 1953, c.112, s.107.) As amended by Acts 1982,
P.L.171, SEC.4.
IC 29-1-1-8
Repealed
(Repealed by Acts 1971, P.L.407, SEC.2.)
IC 29-1-1-9 Petitions
Sec. 9. Every application to the court, unless otherwise provided,
shall be by petition signed and verified by or on behalf of the
petitioner. No defect of form or substance in any petition, nor the
absence of a petition, shall invalidate any proceedings. Interests to be
affected shall be described in pleadings that give reasonable
information to owners by name or class, by reference to the
instrument creating the interests, or in another appropriate manner. (Formerly: Acts 1953, c.112, s.109.) As amended by P.L.118-1997,
SEC.6.
IC 29-1-1-10 Notice of filings; objections or answers
Sec. 10. Where, pursuant to law, order of court, or the request of
the moving party, notice of the filing of any report, account, claim,
petition, motion or other pleading to interested persons is required
before submission of the same to the court, any interested person, on
or before the day set for hearing, may file written objections or
answers thereto, and, upon special order or general rule of the court,
objections or answers thereto must be filed in writing as a
prerequisite of being heard by the court. (Formerly: Acts 1953, c.112, s.110.)
IC 29-1-1-11 Notice to interested persons
Sec. 11. No notice to interested persons need be given except as
specifically provided for in this article or as ordered by the court.
When no notice is required by this article, the court may require such
notice as it deems desirable by a general rule or by an order in a
particular case. Notice is required as follows:
(1) Notice as prescribed by this chapter must be given to every
interested person or to one who can bind an interested person as
described in section 20(a)(1) through 20(a)(3) of this chapter or
IC 29-3-2-4. Notice may be given both to a person and to
another who may bind him.
(2) Notice is given to unborn or unascertained persons, who are
not represented as described in section 20(a)(1) through
20(a)(3) of this chapter or IC 29-3-2-4, by giving notice to all
known persons whose interests in the proceedings are
substantially identical to those of the unborn or unascertained
persons. (Formerly: Acts 1953, c.112, s.111.) As amended by Acts 1982,
P.L.171, SEC.5; P.L.118-1997, SEC.7.
IC 29-1-1-12 Service of notice
Sec. 12. (a) Unless waived and except as otherwise provided by
law, all notices required by this article to be served upon any person
shall be served as the court shall direct by rule or in a particular case,
by:
(1) delivering a copy of the notice to the person or by leaving a
copy of the notice at the person's last and usual place of
residence, at least ten (10) days before the hearing, if the person
is a resident of the state of Indiana;
(2) publication, if the person is a nonresident of the state of
Indiana or if the person's residence is unknown, once each week
for three (3) weeks consecutively in a newspaper printed and
circulating in the county where the court is held, the first day of
publication to be at least thirty (30) days prior to the date set for
hearing; or in case there is no newspaper printed in the county,
then in a newspaper circulating in the county where the
proceeding is pending, and designated by the judge or clerk;
(3) first class postage prepaid mail addressed to the person
located in the United States, at the person's address stated in the
petition for the hearing, to be posted by depositing in any
United States post office in this state at least fourteen (14) days
prior to the date set for hearing in the notice;
(4) personal service on nonresidents to be served by any officer
authorized to serve process in the county of the nonresident,
which notice shall be served at least fourteen (14) days prior to
the date set for hearing in such notice; or
(5) any combination of two (2) or more of the above.
(b) In all cases where service by publication is ordered but
personal service or service by registered mail is not ordered, all
persons directed by the provisions of this article, or by order of the
court, to be notified, whose names and addresses are known or can
by reasonable diligence be ascertained by the party charged with the
duty of giving notice, shall in addition to the published notice
required by order, be served by a written notice by United States first
class postage prepaid mail at least fourteen (14) days prior to the date
set for hearing in the notice.
(c) The personal representative or party charged with the duty of
giving notice shall furnish the clerk with sufficient copies of the
notice, prepared for mailing, and the clerk shall mail the notice. (Formerly: Acts 1953, c.112, s.112; Acts 1955, c.258, s.1; Acts 1961,
c.50, s.2.) As amended by Acts 1982, P.L.171, SEC.6; P.L.118-1997,
SEC.8; P.L.95-2007, SEC.3.
IC 29-1-1-13 Service by publication and mail; personal service
Sec. 13. Service by publication and by mail shall be made by the
clerk at the instance of the party who requires such service to be
made. Personal service may be made by any competent person unless
otherwise directed by the court or the provisions of this article. (Formerly: Acts 1953, c.112, s.113.) As amended by Acts 1982,
P.L.171, SEC.7.
IC 29-1-1-14 Service upon attorney
Sec. 14. (a) If an attorney shall have entered his appearance in
writing for any person in any probate proceeding or matter pending
in the court, all notices required to be served on the person in such
proceeding or matter may be served on the attorney and such service
shall be in lieu of service upon the person for whom the attorney
appears.
(b) Notices to the personal representative may similarly be served
on his attorney of record. (Formerly: Acts 1953, c.112, s.114.)
IC 29-1-1-15 Form of notice
Sec. 15. The form of such notice may be prescribed by the court
by rule or order. A notice shall be deemed sufficient if it shall set
forth the nature of the petition or paper filed or the action requested,
and the time fixed for hearing thereof, or the time fixed for filing a
responsive pleading. or objections thereto.
(Formerly: Acts 1953, c.112, s.115.)
IC 29-1-1-16 Proof of service; filing
Sec. 16. Proof of service in all cases requiring notice, whether by
publication, mailing or otherwise, shall be filed before the hearing.
Service made by a private person shall be proved by the affidavit of
the person; service made by the clerk or other official shall be proved
by certificate or return of service. (Formerly: Acts 1953, c.112, s.116.)
IC 29-1-1-17 Proof of service as evidence
Sec. 17. Such proof of service shall be received in evidence in any
court in this state, and be deemed sufficient proof of the matters and
things therein contained. (Formerly: Acts 1953, c.112, s.117.)
IC 29-1-1-18 Notices; proof of compliance
Sec. 18. Nothing contained in section 16 or section 17 of this
chapter shall preclude any person from proving in any suit or
proceeding that the provisions of this article respecting such notice
have been complied with, although no such proof of service may
have been filed as therein required. (Formerly: Acts 1953, c.112, s.118.) As amended by Acts 1982,
P.L.171, SEC.8.
IC 29-1-1-19 Notice of hearing; waiver
Sec. 19. Any person legally competent who is required to be
served with notice of any hearing in a probate proceeding may in
person or by attorney waive in writing issuance and service of notice
of the hearing. A guardian of the estate or a guardian ad litem may
make the waiver on behalf of a protected person. A consul or other
representative of a foreign government, whose appearance has been
entered as provided by law on behalf of a person residing in a foreign
country, may make a waiver of notice on behalf of the person. Any
person who submits to the jurisdiction of the court in any hearing
shall be deemed to have waived notice. (Formerly: Acts 1953, c.112, s.119.) As amended by P.L.33-1989,
SEC.32.
IC 29-1-1-20 Incapacitated persons; unknown persons; guardians
Sec. 20. (a) In a proceeding involving estates of decedents or
trusts, or in judicially supervised settlements, persons are bound by
orders binding others in the following cases:
(1) Orders binding the sole holder or all co-holders of a power
of revocation or a presently exercisable general power of
appointment, including one in the form of a power of
amendment, bind other persons to the extent their interests (as
objects, takers in default, or otherwise) are subject to the power.
(2) Orders binding a trustee bind beneficiaries of the trust in
proceedings:
(A) to probate a will establishing or adding to a trust;
(B) to review the acts or accounts of a prior fiduciary; and
(C) involving creditors or other third parties.
(3) Orders binding a personal representative bind persons
interested in the undistributed assets of a decedent's estate in
actions or proceedings by or against the estate. If there is no
conflict of interest and no guardian of the estate or person has
been appointed, a parent may represent the parent's minor child.
(4) An interested person:
(A) who is incapacitated;
(B) whose present name, existence, or residence upon
diligent inquiry is unknown and cannot be ascertained; or
(C) who is not otherwise represented;
is bound by an order to the extent the person's interest is
adequately represented by another party having a substantially
identical interest in the proceeding.
(b) At any point in a proceeding, a court may appoint a guardian
ad litem to represent the interest of a minor, an incapacitated, unborn,
or unascertained person, or a person whose identity or address is
unknown, if the court determines that representation of the interest
otherwise would be inadequate. If not precluded by conflict of
interests, a guardian ad litem may be appointed to represent several
persons or interests. The court shall set out its reasons for appointing
a guardian ad litem as a part of the record of the proceeding. Any
guardian of the person or estate of the person having an interest may
be appointed as a guardian ad litem.
(c) The compensation of a guardian or guardian ad litem and the
guardian's expenses including attorney's fees for services rendered in
any proceeding under this article may be allowed in such amount and
ordered paid either out of the entire estate involved as an expense of
administration, or out of the protected person's interest therein as the
court in its discretion shall determine.
(d) Any adjudication involving the interests of persons considered
represented under this section shall be lawful and binding upon all
interested persons, whether born or unborn, whether notified or not
notified, and whether represented or not, if the interested persons are
of the same class or have interests similar to the predominant
interests of any person notified or represented. (Formerly: Acts 1953, c.112, s.120.) As amended by Acts 1982,
P.L.171, SEC.9; P.L.33-1989, SEC.33; P.L.118-1997, SEC.9.
IC 29-1-1-21 Orders, judgments, or decrees; vacating or modifying
Sec. 21. For illegality, fraud or mistake, upon application filed
within one (1) year after the discharge of the personal representative
upon final settlement, the court may vacate or modify its orders,
judgments and decrees or grant a rehearing therein. Before any such
order, judgment or decree shall be vacated or modified, notice of
such application and hearing shall be given to the personal
representative and all interested persons as provided in section 12 of
this chapter. No vacation or modification under this section shall
affect any right acquired by any innocent person in reliance upon any
such previous order, judgment or decree. (Formerly: Acts 1953, c.112, s.121.) As amended by Acts 1982,
P.L.171, SEC.10.
IC 29-1-1-22 Appeals; stay of proceedings
Sec. 22. Any person considering himself aggrieved by any
decision of a court having probate jurisdiction in proceedings under
this article may prosecute an appeal to the court having jurisdiction
of such appeal. Such appeal shall be taken as appeals are taken in
civil causes. Executors, administrators, guardians and fiduciaries
may have a stay of proceedings without bond. (Formerly: Acts 1953, c.112, s.122.) As amended by Acts 1982,
P.L.171, SEC.11.
IC 29-1-1-23 Record of proceedings; dockets
Sec. 23. The following records of proceedings under this article
shall be maintained in addition to other records as the court having
probate jurisdiction shall provide for:
(1) An index in which estates of deceased persons shall be
indexed under the name of the decedent, and those pertaining to
guardianships under the name of the protected person. After the
name of each shall be shown the docket number and page
wherein entries pertaining to such decedent's or ward's estate
appear.
(2) Decedent's and guardianship estate dockets, in which shall
be listed in chronological order under the name of the decedent
or protected person, all documents filed or issued and all orders,
judgments, and decrees made pertaining to the estate, the date,
and a reference to the volume and page of any other book in
which any record shall have been made of such document.
(3) A record of wills, properly indexed, in which shall be
recorded all wills admitted to probate and a record of the
testimony of a witness examined, subscribed by the witness and
attested by the clerk with the clerk's signature and seal of office.
The will with the testimony and attestation to be certified by the
clerk to be a complete record.
(4) An order book, in which shall be entered all proceedings
with respect to the estate in conformity with the law pertaining
to order books of circuit courts of this state and with the rules
of the court. (Formerly: Acts 1953, c.112, s.123.) As amended by Acts 1982,
IC 29-1-1-24 Fraud; relief for injured parties
Sec. 24. Whenever fraud has been perpetrated in connection with
any proceeding or in any statement filed under this probate code or
if fraud is used to avoid or circumvent the provisions or purposes of
this probate code, any person injured thereby may obtain appropriate
relief against the perpetrator of the fraud including restitution from
any person (other than a bona fide purchaser) benefiting from the
fraud, whether innocent or not. This section has no bearing on
remedies relating to fraud practiced on a decedent during his lifetime
which affects the succession of his estate. (Formerly: Acts 1975, P.L.288, SEC.1.)
