IC 29-1-17-1 Order of court; perishable property; depreciable property; storage
or preservation; income and profits
Sec. 1. (a) At any time during the administration, upon application
of the personal representative or any distributee, with or without
notice as the court may direct, the court may order the personal
representative to deliver to any distributee, who consents to it,
possession of any specific real or tangible personal property to which
he is entitled under the terms of the will or by intestacy, provided
that other distributees and claimants are not prejudiced thereby. The
court may at any time prior to the decree of final distribution order
him to return such property to the personal representative if it is for
the best interest of the estate. The court may require the distributee
to give security for such return.
(b) At any time during the administration, when it is apparent that
the estate is solvent, the court in its discretion may order distribution
to the persons entitled thereto of such items of property of the estate
as:
(1) are perishable in nature,
(2) would materially depreciate in value if distribution were
delayed, or
(3) would necessitate the expenditure of estate funds for storage
or preservation if not distributed.
Such distribution may be with or without security or notice to the
interested parties as the court may direct.
(c) After the expiration of the time limited for the filing of claims
and before final settlement of the accounts of the personal
representative, a partial distribution may be decreed, with notice to
interested persons as the court may direct. Such distribution shall be
as conclusive as a decree of final distribution, except that the court
may, as provided in section 2(b) of this chapter, modify such decree
of partial distribution to the extent necessary to protect the other
distributees and claimants, and assure them that they will receive the
amount due them on final distribution. Before a partial distribution
is so decreed, the court may require that security be given for the
return of the property so distributed to the extent necessary to satisfy
any distributees and claimants who may be prejudiced as aforesaid
by the partial distribution.
(d) The person to whom possession or distribution has been made
under the provisions of this section, shall be entitled to the income
and profits from such property. (Formerly: Acts 1953, c.112, s.1701; Acts 1955, c.258, s.9.) As
amended by Acts 1982, P.L.171, SEC.48.
IC 29-1-17-2 Final accounts; decree of final distribution
Sec. 2. (a) After the expiration of the time limit for the filing of
claims, and after all claims against the estate, including state and
federal inheritance and estate taxes, have been determined, paid, or
provision made therefor, except contingent and unmatured claims
which cannot then be paid, the personal representative shall, if the
estate is in a condition to be closed, render a final account and at the
same time petition the court to decree the final distribution of the
estate. Notice of the hearing of the petition shall be given under
IC 29-1-16-6.
(b) In its decree of final distribution, the court shall designate the
persons to whom distribution is to be made, and the proportions or
parts of the estate, or the amounts, to which each is entitled under the
will and the provisions of this probate code, including the provisions
regarding advancements, election by the surviving spouse, lapse,
renunciation, adjudicated compromise of controversies, and retainer.
Every tract of real property so distributed shall be specifically
described therein. The decree shall find that all state and federal
inheritance and estate taxes are paid, and if all claims have been paid,
it shall so state; otherwise, the decree shall state that all claims
except those therein specified are paid and shall describe the claims
for the payment of which a special fund is set aside, and the amount
of such fund. If any contingent claims which have been duly allowed
are still unpaid and have not become absolute, such claims shall be
described in the decree, which shall state whether the distributees
take subject to them. If a fund is set aside for the payment of
contingent claims, the decree shall provide for the distribution of
such fund in the event that all or a part of it is not needed to satisfy
such contingent claims. If a decree of partial distribution has been
previously made, the decree of final distribution shall expressly
confirm it, or, for good cause, shall modify said decree and state
specifically what modifications are made.
(c) If a distributee dies before distribution to the distributee of the
distributee's share of the estate, the distributee's share may be
distributed to the personal representative of the distributee's estate,
if there is one; or if no administration on the deceased distributee's
estate is had and none is necessary according to IC 29-1-8, the share
of the deceased distributee shall be distributed in accordance with
IC 29-1-8.
(d) The decree of final distribution shall be a conclusive
determination of the persons who are the successors in interest to the
estate of the decedent and of the extent and character of their interest
therein, subject only to the right of appeal and the right to reopen the
decree. It shall operate as the final adjudication of the transfer of the
right, title, and interest of the decedent to the distributees therein
designated; but no transfer before or after the decedent's death by an
heir or devisee shall affect the decree, nor shall the decree affect any
rights so acquired by grantees from the heirs or devisees.
(e) Whenever the decree of final distribution includes real
property, a certified copy thereof shall be recorded by the personal
representative in every county of this state in which any real property
distributed by the decree is situated except the county in which the
estate is administered. The cost of recording such decree shall be
charged to the estate. (Formerly: Acts 1953, c.112, s.1702; Acts 1975, P.L.288, SEC.36.)
As amended by P.L.95-2007, SEC.11.
IC 29-1-17-3 Abatement of distributee shares
Sec. 3. (a) Except as provided in subsection (b) hereof, shares of
the distributees shall abate, for the payment of claims, legacies, the
allowance provided by IC 29-1-4-1, the shares of pretermitted heirs
or the share of the surviving spouse who elects to take against the
will, without any preference or priority as between real and personal
property, in the following order:
(1) Property not disposed of by the will.
(2) Property devised to the residuary devisee.
(3) Property disposed of by the will but not specifically devised
and not devised to the residuary devisee.
(4) Property specifically devised.
A general devise charged on any specific property or fund shall,
for purposes of abatement be deemed property specifically devised
to the extent of the value of the thing on which it is charged. Upon
the failure or insufficiency of the thing on which it is charged, it shall
be deemed property not specifically devised to the extent of such
failure or insufficiency.
(b) If the provisions of the will or the testamentary plan or the
express or implied purpose of the devise would be defeated by the
order of abatement stated in subsection (a) hereof, the shares of
distributees shall abate in such other manner as may be found
necessary to give effect to the intention of the testator. (Formerly: Acts 1953, c.112, s.1703.) As amended by Acts 1981,
P.L.260, SEC.2.
IC 29-1-17-4 Abatement of distributee shares; contribution by legatees and
devisees
Sec. 4. When real or personal property which has been
specifically devised, or charged with a legacy, shall be sold or taken
by the personal representative for the payment of claims, general
legacies, the allowance provided by IC 29-1-4-1, the shares of
pretermitted heirs or the share of the surviving spouse who elects to
take against the will, other legatees and devisees shall contribute
according to their respective interests to the legatee or devisee whose
legacy or devise has been sold or taken, so as to accomplish an
abatement in accordance with the provisions of IC 29-1-17-3. The
court shall, at the time of the hearing on the petition for final
distribution, determine the amounts of the respective contributions
and whether the same shall be made before distribution or shall
constitute a lien on specific property which is distributed. (Formerly: Acts 1953, c.112, s.1704.) As amended by Acts 1981,
P.L.260, SEC.3. IC 29-1-17-5 Advancements
Sec. 5. All questions of advancements made, or alleged to have
been made, by an intestate to any heir may be heard and determined
by the court before or at the time of the hearing on the petition for
final distribution. The amount of every such advancement shall be
specified in the decree of final distribution. (Formerly: Acts 1953, c.112, s.1705.)
IC 29-1-17-6 Indebtedness of distributee; offset
Sec. 6. When a distributee of an estate is indebted to the estate,
the amount of the indebtedness if due, or the present worth of the
indebtedness, if not due, may be treated as an offset by the personal
representative against any testate or intestate property, real or
personal, of the estate to which such distributee is entitled; but such
distributee shall be entitled to the benefit of any defense which
would be available to him in a direct proceeding for the recovery of
such debt. (Formerly: Acts 1953, c.112, s.1706.)
IC 29-1-17-7 Income received during administration
Sec. 7. Unless the decedent's will provides otherwise, all income
received by the personal representative during the administration of
the estate shall constitute an asset of the estate the same as any other
asset and the personal representative shall disburse, distribute,
account for and administer said income as a part of the corpus of the
estate. (Formerly: Acts 1953, c.112, s.1707.)
IC 29-1-17-8 General legacies; interest
Sec. 8. General legacies shall not bear interest, unless a contrary
intent is indicated by the will. (Formerly: Acts 1953, c.112, s.1708.)
IC 29-1-17-9 Specific devise; mortgage; pledge; lien
Sec. 9. When any real or personal property subject to a mortgage,
pledge or other lien is specifically devised, the devisee shall take
such property so devised subject to such mortgage unless the will
provides expressly or by necessary implication that such mortgage be
otherwise paid. If a mortgagee receives payment on a claim based
upon the obligation secured by such mortgage, the devise which was
subject to such mortgage shall be charged with the reimbursement to
the estate of the amount of such payment for the benefit of the
distributees entitled thereto. (Formerly: Acts 1953, c.112, s.1709.) IC 29-1-17-10 Distribution in kind; partition sale; election of distributee; annuity;
good faith purchasers or lenders
Sec. 10. (a) When the estate is otherwise ready to be distributed,
it shall be distributed in kind to whatever extent it is practicable,
unless the terms of the will otherwise provide or unless a partition
sale is ordered. Except as provided in subsection (b) of this section,
any general legatee may elect to take the value of his legacy in kind,
and any distributee, who by the terms of the will is to receive land or
any other thing to be purchased by the personal representative, may,
if he notifies the personal representative before the thing is
purchased, elect to take the purchase price or property of the estate
which the personal representative would otherwise sell to obtain such
purchase price. Values for the purposes of such distributions in kind
shall be determined at a time not more than ten (10) days prior to the
filing of the petition for distribution, and if necessary to avoid
substantial inequities may be redetermined at any time prior to the
order of distribution.
(b) If the terms of the will direct the purchase of an annuity, the
person to whom the income thereof shall be directed to be paid shall
not have the right to elect to take the capital sum directed to be used
for such purchase in lieu of such annuity except to the extent that the
will expressly provides that an assignable annuity be purchased.
Nothing herein contained shall affect the rights of election by a
surviving spouse against a testamentary provision as provided in this
article.
(c) If property distributed in kind or a security interest therein is
acquired in good faith for value by a purchaser from or lender to a
distributee who has received an instrument or deed of distribution or
release from the personal representative, or is so acquired in good
faith by a purchaser from or lender to a transferee of the distributee,
the purchaser or lender takes title free of any right of an interested
person in the estate and incurs no personal liability to the estate, or
to any interested person, whether or not the distribution was proper
or supported by court order or the authority of the personal
representative was terminated before execution of the instrument or
deed. This subsection protects a purchaser from or lender to a
distributee who, as personal representative, has executed a deed of
distribution to himself, and a purchaser from or lender to any other
distributee or his transferee. To be protected under this subsection,
a purchaser or lender need not inquire whether a personal
representative acted properly in making the distribution in kind, even
if the personal representative and the distributee are the same person,
or whether the authority of the personal representative had
terminated before the distribution. (Formerly: Acts 1953, c.112, s.1710.) As amended by Acts 1977,
P.L.297, SEC.4.
IC 29-1-17-11 Undivided interests; distribution, partition in kind or by sale,
distribution by total fair market value; appointment of
commissioner
Sec. 11. (a) When two (2) or more distributees are entitled to
distribution of undivided interests in any real or personal property of
the estate, distribution shall be made of undivided interests therein
unless the personal representative or one (1) or more of the
distributees petition the court not later than the hearing on the
petition for final distribution, to make partition thereof. If a petition
is filed, the court, after notice is given to all interested persons as the
court directs, shall proceed to make partition, allot and divide the
property in the same manner as provided by the statutes with respect
to civil actions for partition, so that each party receives property of
a value proportionate to the party's interest in the whole. The court
may direct the personal representative to sell any property which
cannot be partitioned without prejudice to the owners and which
cannot conveniently be allotted to any one (1) party. If partition is
made in kind, the court may appoint a commissioner to partition the
property, who shall have the powers and perform the duties of a
commissioner in civil actions for partition, and the court shall have
the same powers with respect to the commissioner's report as in civil
actions. If equal partition cannot be had between the parties without
prejudice to the rights or interests of some, partition may be made in
unequal shares and by awarding judgment for compensation to be
paid by one (1) or more parties to one (1) or more of the others. Any
two (2) or more parties may agree to accept undivided interests. Any
sale under this section shall be conducted and confirmed in the same
manner as other probate sales. The expenses of the partition,
including reasonable compensation to the commissioner, shall be
equitably apportioned by the court among the parties. Each party
must pay the party's own attorney's fees. The amount charged to each
party constitutes a lien on the property allotted to the party.
(b) If a distribution of particular assets of a decedent is to be made
to two (2) or more distributees that are entitled to receive fractional
shares in the assets, the decedent's personal representative may,
under an agreement among the distributees, distribute the particular
assets without distributing to each distributee a pro rata share of each
asset. However, the personal representative shall:
(1) distribute to each distributee a pro rata share of the total fair
market value of all the particular assets as of the date of
distribution; and
(2) divide the assets in a manner that results in a fair and
equitable division among the distributees of any capital gain or
loss on the assets. (Formerly: Acts 1953, c.112, s.1711.) As amended by P.L.265-1989,
SEC.1.
IC 29-1-17-12 Unclaimed estate assets; disposition procedures; escheat; time
limit; exceptions
Sec. 12. (a) If after reasonable search, satisfactory to the court,
there shall be no known heir of the decedent, all of his net estate not
disposed of by will shall be ordered paid to the state treasurer to
become a part of the common school fund, subject to the further
provisions of this section.
(b) If any heir, distributee, advisee, or claimant cannot be found
after reasonable search, satisfactory to the court, the personal
representative shall sell the share of the estate to which he is entitled,
pursuant to an order of court first obtained, and pay the proceeds to
the clerk of the court for use and benefit of the person or persons
thereafter determined to be entitled thereto according to law.
(c) When the personal representative shall pay any money to the
state treasurer or clerk of the court pursuant to this section, he shall
take a receipt therefor and file it with the court with the other
receipts filed in the proceeding. Such receipt shall be sufficient to
discharge the personal representative in the same manner and to the
same extent as though such distribution or payment were made to a
distributee or claimant entitled thereto.
(d) The moneys received by the state treasurer pursuant to the
provisions of this section shall be paid to the person entitled on proof
of his right thereto or in the case of an absentee, to the receiver of
such absentee's property, or, if the state treasurer refuses or fails to
pay because he is doubtful as to his duties in the premises, such
person may apply to the court in which the estate was administered,
whereupon the court upon notice to the state treasurer may determine
the person entitled thereto and order the treasurer to pay the same
accordingly. No interest shall be allowed thereon and such
distributee or claimant shall pay all costs and expenses incident to
the proceedings. If such proceeds are not paid or no application is
made to the court within seven (7) years after such payment to the
state treasurer, no recovery thereof shall be had.
(e) This section does not apply to stocks, dividends, capital
credits, patronage refunds, utility deposits, membership fees, account
balances, or book equities for which the owner cannot be found and
that are the result of distributable savings of a rural electric
membership corporation formed under IC 8-1-13, a rural telephone
cooperative corporation formed under IC 8-1-17, or an agricultural
cooperative association formed under IC 15-12-1. (Formerly: Acts 1953, c.112, s.1712.) As amended by Acts 1981,
P.L.106, SEC.4; P.L.2-2008, SEC.69.
IC 29-1-17-13 Supplemental reports; discharge; limitation of actions
Sec. 13. Upon the filing of a supplemental report of distribution
together with receipts or other evidence satisfactory to the court that
distribution has been made as ordered in the final decree, the court
shall enter an order of discharge. The discharge so obtained shall
operate as a release from the duties of personal representative and
shall operate as a bar to any suit including suits by persons under
disability, against the personal representative and his sureties except
suits which are commenced within one (1) year from the date of the
discharge and are based solely upon alleged mistake, fraud or wilful
misconduct on the part of the personal representative. (Formerly: Acts 1953, c.112, s.1713.)
IC 29-1-17-14 After discovered property; reopening estate; inheritance tax
Sec. 14. (a) If, after an estate has been settled and the personal
representative discharged, other property of the estate shall be
discovered, or if it shall appear that any necessary act remains
unperformed on the part of the personal representative, or for any
other proper cause, the court, upon the petition of the discharged
personal representative or any person interested in the estate and,
without notice or upon such notice as it may direct, may order that
said estate be reopened. It may reappoint the personal representative
or appoint another personal representative to administer such
property or perform such act as may be deemed necessary. Unless the
court shall otherwise order, the provisions of this article as to an
original administration shall apply to the proceedings had in the
reopened administration so far as may be, but no claim which is
already barred can be asserted in the reopened administration.
(b) Whenever any solvent estate has been closed, and it thereafter
appears that any assets thereof have not been fully administered
upon, the court may, if it appears practicable, order such assets
distributed to, or title vested in, the persons entitled thereto after
compliance with requirements as to an inheritance tax imposed under
IC 6-4.1, in lieu of reopening the estate as provided in the preceding
subsection. No additional notice of such proceedings shall be
necessary unless so ordered by the court. (Formerly: Acts 1953, c.112, s.1714.) As amended by Acts 1982,
P.L.171, SEC.49; P.L.254-1997(ss), SEC.29.
IC 29-1-17-15
Repealed
(Repealed by Acts 1973, P.L.289, SEC.4.)
IC 29-1-17-15.1 Petition to determine heirs of estate; contents; notice; hearing;
decree
Sec. 15.1. (a) Whenever any person has died leaving property or
any interest therein and no general administration has been
commenced on his estate in this state, nor has any will been offered
for probate in this state, within five (5) months after his death, any
person claiming an interest in such property as heir or through an
heir may file a petition in any court which would be of proper venue
for the administration of such decedent's estate, to determine the
heirs of said decedent and their respective interests as heirs in the
estate.
(b) The petition shall state:
(1) The name, age, domicile and date of death of the decedent;
(2) The names, ages and residence addresses of the heirs, so far
as known or can with reasonable diligence be ascertained;
(3) The names and residence addresses of any persons claiming
any interest in such property through an heir, so far as known or can
by reasonable diligence be ascertained;
(4) A particular description of the property with respect to which
such determination is sought;
(5) The net value of the estate.
(c) Upon the filing of the petition, the court shall fix the time for
the hearing thereof, notice of which shall be given to:
(1) All persons known or believed to claim any interest in the
property as heir or through an heir of the decedent;
(2) All persons who may at the date of the filing of the petition be
shown by the records of conveyances of the county in which any real
property described in such petition is located to claim any interest
therein through the heirs of the decedent; and
(3) Any unknown heirs of the decedent.
Such notice shall be given by publication and, in addition personal
notice by registered mail shall be given to every such person whose
address is known to the petitioner. Upon satisfactory proofs
including proof of compliance with inheritance tax laws of this state
the court shall make a decree determining the heirs of said decedent
and their respective interests as heirs in said property.
(d) A certified copy of the decree shall be recorded at the expense
of the petitioner in each county in which any real property described
therein is situated except the county in which the decree is entered,
and shall be conclusive evidence of the facts determined therein as
against all parties to the proceedings. (Formerly: Acts 1973, P.L.289, SEC.2; Acts 1975, P.L.288, SEC.37.)
IC 29-1-17-16 Rules of equity; relief not limited
Sec. 16. The limitations provided for in IC 29-1-1-21 and section
13 of this chapter shall not deprive any interested person of the relief
now afforded him under the rules of equity. (Formerly: Acts 1953, c.112, s.1716.) As amended by Acts 1982,
P.L.171, SEC.50.
IC 29-1-17-1 Order of court; perishable property; depreciable property; storage
or preservation; income and profits
Sec. 1. (a) At any time during the administration, upon application
of the personal representative or any distributee, with or without
notice as the court may direct, the court may order the personal
representative to deliver to any distributee, who consents to it,
possession of any specific real or tangible personal property to which
he is entitled under the terms of the will or by intestacy, provided
that other distributees and claimants are not prejudiced thereby. The
court may at any time prior to the decree of final distribution order
him to return such property to the personal representative if it is for
the best interest of the estate. The court may require the distributee
to give security for such return.
(b) At any time during the administration, when it is apparent that
the estate is solvent, the court in its discretion may order distribution
to the persons entitled thereto of such items of property of the estate
as:
(1) are perishable in nature,
(2) would materially depreciate in value if distribution were
delayed, or
(3) would necessitate the expenditure of estate funds for storage
or preservation if not distributed.
Such distribution may be with or without security or notice to the
interested parties as the court may direct.
(c) After the expiration of the time limited for the filing of claims
and before final settlement of the accounts of the personal
representative, a partial distribution may be decreed, with notice to
interested persons as the court may direct. Such distribution shall be
as conclusive as a decree of final distribution, except that the court
may, as provided in section 2(b) of this chapter, modify such decree
of partial distribution to the extent necessary to protect the other
distributees and claimants, and assure them that they will receive the
amount due them on final distribution. Before a partial distribution
is so decreed, the court may require that security be given for the
return of the property so distributed to the extent necessary to satisfy
any distributees and claimants who may be prejudiced as aforesaid
by the partial distribution.
(d) The person to whom possession or distribution has been made
under the provisions of this section, shall be entitled to the income
and profits from such property. (Formerly: Acts 1953, c.112, s.1701; Acts 1955, c.258, s.9.) As
amended by Acts 1982, P.L.171, SEC.48.
IC 29-1-17-2 Final accounts; decree of final distribution
Sec. 2. (a) After the expiration of the time limit for the filing of
claims, and after all claims against the estate, including state and
federal inheritance and estate taxes, have been determined, paid, or
provision made therefor, except contingent and unmatured claims
which cannot then be paid, the personal representative shall, if the
estate is in a condition to be closed, render a final account and at the
same time petition the court to decree the final distribution of the
estate. Notice of the hearing of the petition shall be given under
IC 29-1-16-6.
(b) In its decree of final distribution, the court shall designate the
persons to whom distribution is to be made, and the proportions or
parts of the estate, or the amounts, to which each is entitled under the
will and the provisions of this probate code, including the provisions
regarding advancements, election by the surviving spouse, lapse,
renunciation, adjudicated compromise of controversies, and retainer.
Every tract of real property so distributed shall be specifically
described therein. The decree shall find that all state and federal
inheritance and estate taxes are paid, and if all claims have been paid,
it shall so state; otherwise, the decree shall state that all claims
except those therein specified are paid and shall describe the claims
for the payment of which a special fund is set aside, and the amount
of such fund. If any contingent claims which have been duly allowed
are still unpaid and have not become absolute, such claims shall be
described in the decree, which shall state whether the distributees
take subject to them. If a fund is set aside for the payment of
contingent claims, the decree shall provide for the distribution of
such fund in the event that all or a part of it is not needed to satisfy
such contingent claims. If a decree of partial distribution has been
previously made, the decree of final distribution shall expressly
confirm it, or, for good cause, shall modify said decree and state
specifically what modifications are made.
(c) If a distributee dies before distribution to the distributee of the
distributee's share of the estate, the distributee's share may be
distributed to the personal representative of the distributee's estate,
if there is one; or if no administration on the deceased distributee's
estate is had and none is necessary according to IC 29-1-8, the share
of the deceased distributee shall be distributed in accordance with
IC 29-1-8.
(d) The decree of final distribution shall be a conclusive
determination of the persons who are the successors in interest to the
estate of the decedent and of the extent and character of their interest
therein, subject only to the right of appeal and the right to reopen the
decree. It shall operate as the final adjudication of the transfer of the
right, title, and interest of the decedent to the distributees therein
designated; but no transfer before or after the decedent's death by an
heir or devisee shall affect the decree, nor shall the decree affect any
rights so acquired by grantees from the heirs or devisees.
(e) Whenever the decree of final distribution includes real
property, a certified copy thereof shall be recorded by the personal
representative in every county of this state in which any real property
distributed by the decree is situated except the county in which the
estate is administered. The cost of recording such decree shall be
charged to the estate. (Formerly: Acts 1953, c.112, s.1702; Acts 1975, P.L.288, SEC.36.)
As amended by P.L.95-2007, SEC.11.
IC 29-1-17-3 Abatement of distributee shares
Sec. 3. (a) Except as provided in subsection (b) hereof, shares of
the distributees shall abate, for the payment of claims, legacies, the
allowance provided by IC 29-1-4-1, the shares of pretermitted heirs
or the share of the surviving spouse who elects to take against the
will, without any preference or priority as between real and personal
property, in the following order:
(1) Property not disposed of by the will.
(2) Property devised to the residuary devisee.
(3) Property disposed of by the will but not specifically devised
and not devised to the residuary devisee.
(4) Property specifically devised.
A general devise charged on any specific property or fund shall,
for purposes of abatement be deemed property specifically devised
to the extent of the value of the thing on which it is charged. Upon
the failure or insufficiency of the thing on which it is charged, it shall
be deemed property not specifically devised to the extent of such
failure or insufficiency.
(b) If the provisions of the will or the testamentary plan or the
express or implied purpose of the devise would be defeated by the
order of abatement stated in subsection (a) hereof, the shares of
distributees shall abate in such other manner as may be found
necessary to give effect to the intention of the testator. (Formerly: Acts 1953, c.112, s.1703.) As amended by Acts 1981,
P.L.260, SEC.2.
IC 29-1-17-4 Abatement of distributee shares; contribution by legatees and
devisees
Sec. 4. When real or personal property which has been
specifically devised, or charged with a legacy, shall be sold or taken
by the personal representative for the payment of claims, general
legacies, the allowance provided by IC 29-1-4-1, the shares of
pretermitted heirs or the share of the surviving spouse who elects to
take against the will, other legatees and devisees shall contribute
according to their respective interests to the legatee or devisee whose
legacy or devise has been sold or taken, so as to accomplish an
abatement in accordance with the provisions of IC 29-1-17-3. The
court shall, at the time of the hearing on the petition for final
distribution, determine the amounts of the respective contributions
and whether the same shall be made before distribution or shall
constitute a lien on specific property which is distributed. (Formerly: Acts 1953, c.112, s.1704.) As amended by Acts 1981,
P.L.260, SEC.3. IC 29-1-17-5 Advancements
Sec. 5. All questions of advancements made, or alleged to have
been made, by an intestate to any heir may be heard and determined
by the court before or at the time of the hearing on the petition for
final distribution. The amount of every such advancement shall be
specified in the decree of final distribution. (Formerly: Acts 1953, c.112, s.1705.)
IC 29-1-17-6 Indebtedness of distributee; offset
Sec. 6. When a distributee of an estate is indebted to the estate,
the amount of the indebtedness if due, or the present worth of the
indebtedness, if not due, may be treated as an offset by the personal
representative against any testate or intestate property, real or
personal, of the estate to which such distributee is entitled; but such
distributee shall be entitled to the benefit of any defense which
would be available to him in a direct proceeding for the recovery of
such debt. (Formerly: Acts 1953, c.112, s.1706.)
IC 29-1-17-7 Income received during administration
Sec. 7. Unless the decedent's will provides otherwise, all income
received by the personal representative during the administration of
the estate shall constitute an asset of the estate the same as any other
asset and the personal representative shall disburse, distribute,
account for and administer said income as a part of the corpus of the
estate. (Formerly: Acts 1953, c.112, s.1707.)
IC 29-1-17-8 General legacies; interest
Sec. 8. General legacies shall not bear interest, unless a contrary
intent is indicated by the will. (Formerly: Acts 1953, c.112, s.1708.)
IC 29-1-17-9 Specific devise; mortgage; pledge; lien
Sec. 9. When any real or personal property subject to a mortgage,
pledge or other lien is specifically devised, the devisee shall take
such property so devised subject to such mortgage unless the will
provides expressly or by necessary implication that such mortgage be
otherwise paid. If a mortgagee receives payment on a claim based
upon the obligation secured by such mortgage, the devise which was
subject to such mortgage shall be charged with the reimbursement to
the estate of the amount of such payment for the benefit of the
distributees entitled thereto. (Formerly: Acts 1953, c.112, s.1709.) IC 29-1-17-10 Distribution in kind; partition sale; election of distributee; annuity;
good faith purchasers or lenders
Sec. 10. (a) When the estate is otherwise ready to be distributed,
it shall be distributed in kind to whatever extent it is practicable,
unless the terms of the will otherwise provide or unless a partition
sale is ordered. Except as provided in subsection (b) of this section,
any general legatee may elect to take the value of his legacy in kind,
and any distributee, who by the terms of the will is to receive land or
any other thing to be purchased by the personal representative, may,
if he notifies the personal representative before the thing is
purchased, elect to take the purchase price or property of the estate
which the personal representative would otherwise sell to obtain such
purchase price. Values for the purposes of such distributions in kind
shall be determined at a time not more than ten (10) days prior to the
filing of the petition for distribution, and if necessary to avoid
substantial inequities may be redetermined at any time prior to the
order of distribution.
(b) If the terms of the will direct the purchase of an annuity, the
person to whom the income thereof shall be directed to be paid shall
not have the right to elect to take the capital sum directed to be used
for such purchase in lieu of such annuity except to the extent that the
will expressly provides that an assignable annuity be purchased.
Nothing herein contained shall affect the rights of election by a
surviving spouse against a testamentary provision as provided in this
article.
(c) If property distributed in kind or a security interest therein is
acquired in good faith for value by a purchaser from or lender to a
distributee who has received an instrument or deed of distribution or
release from the personal representative, or is so acquired in good
faith by a purchaser from or lender to a transferee of the distributee,
the purchaser or lender takes title free of any right of an interested
person in the estate and incurs no personal liability to the estate, or
to any interested person, whether or not the distribution was proper
or supported by court order or the authority of the personal
representative was terminated before execution of the instrument or
deed. This subsection protects a purchaser from or lender to a
distributee who, as personal representative, has executed a deed of
distribution to himself, and a purchaser from or lender to any other
distributee or his transferee. To be protected under this subsection,
a purchaser or lender need not inquire whether a personal
representative acted properly in making the distribution in kind, even
if the personal representative and the distributee are the same person,
or whether the authority of the personal representative had
terminated before the distribution. (Formerly: Acts 1953, c.112, s.1710.) As amended by Acts 1977,
P.L.297, SEC.4.
IC 29-1-17-11 Undivided interests; distribution, partition in kind or by sale,
distribution by total fair market value; appointment of
commissioner
Sec. 11. (a) When two (2) or more distributees are entitled to
distribution of undivided interests in any real or personal property of
the estate, distribution shall be made of undivided interests therein
unless the personal representative or one (1) or more of the
distributees petition the court not later than the hearing on the
petition for final distribution, to make partition thereof. If a petition
is filed, the court, after notice is given to all interested persons as the
court directs, shall proceed to make partition, allot and divide the
property in the same manner as provided by the statutes with respect
to civil actions for partition, so that each party receives property of
a value proportionate to the party's interest in the whole. The court
may direct the personal representative to sell any property which
cannot be partitioned without prejudice to the owners and which
cannot conveniently be allotted to any one (1) party. If partition is
made in kind, the court may appoint a commissioner to partition the
property, who shall have the powers and perform the duties of a
commissioner in civil actions for partition, and the court shall have
the same powers with respect to the commissioner's report as in civil
actions. If equal partition cannot be had between the parties without
prejudice to the rights or interests of some, partition may be made in
unequal shares and by awarding judgment for compensation to be
paid by one (1) or more parties to one (1) or more of the others. Any
two (2) or more parties may agree to accept undivided interests. Any
sale under this section shall be conducted and confirmed in the same
manner as other probate sales. The expenses of the partition,
including reasonable compensation to the commissioner, shall be
equitably apportioned by the court among the parties. Each party
must pay the party's own attorney's fees. The amount charged to each
party constitutes a lien on the property allotted to the party.
(b) If a distribution of particular assets of a decedent is to be made
to two (2) or more distributees that are entitled to receive fractional
shares in the assets, the decedent's personal representative may,
under an agreement among the distributees, distribute the particular
assets without distributing to each distributee a pro rata share of each
asset. However, the personal representative shall:
(1) distribute to each distributee a pro rata share of the total fair
market value of all the particular assets as of the date of
distribution; and
(2) divide the assets in a manner that results in a fair and
equitable division among the distributees of any capital gain or
loss on the assets. (Formerly: Acts 1953, c.112, s.1711.) As amended by P.L.265-1989,
SEC.1.
IC 29-1-17-12 Unclaimed estate assets; disposition procedures; escheat; time
limit; exceptions
Sec. 12. (a) If after reasonable search, satisfactory to the court,
there shall be no known heir of the decedent, all of his net estate not
disposed of by will shall be ordered paid to the state treasurer to
become a part of the common school fund, subject to the further
provisions of this section.
(b) If any heir, distributee, advisee, or claimant cannot be found
after reasonable search, satisfactory to the court, the personal
representative shall sell the share of the estate to which he is entitled,
pursuant to an order of court first obtained, and pay the proceeds to
the clerk of the court for use and benefit of the person or persons
thereafter determined to be entitled thereto according to law.
(c) When the personal representative shall pay any money to the
state treasurer or clerk of the court pursuant to this section, he shall
take a receipt therefor and file it with the court with the other
receipts filed in the proceeding. Such receipt shall be sufficient to
discharge the personal representative in the same manner and to the
same extent as though such distribution or payment were made to a
distributee or claimant entitled thereto.
(d) The moneys received by the state treasurer pursuant to the
provisions of this section shall be paid to the person entitled on proof
of his right thereto or in the case of an absentee, to the receiver of
such absentee's property, or, if the state treasurer refuses or fails to
pay because he is doubtful as to his duties in the premises, such
person may apply to the court in which the estate was administered,
whereupon the court upon notice to the state treasurer may determine
the person entitled thereto and order the treasurer to pay the same
accordingly. No interest shall be allowed thereon and such
distributee or claimant shall pay all costs and expenses incident to
the proceedings. If such proceeds are not paid or no application is
made to the court within seven (7) years after such payment to the
state treasurer, no recovery thereof shall be had.
(e) This section does not apply to stocks, dividends, capital
credits, patronage refunds, utility deposits, membership fees, account
balances, or book equities for which the owner cannot be found and
that are the result of distributable savings of a rural electric
membership corporation formed under IC 8-1-13, a rural telephone
cooperative corporation formed under IC 8-1-17, or an agricultural
cooperative association formed under IC 15-12-1. (Formerly: Acts 1953, c.112, s.1712.) As amended by Acts 1981,
P.L.106, SEC.4; P.L.2-2008, SEC.69.
IC 29-1-17-13 Supplemental reports; discharge; limitation of actions
Sec. 13. Upon the filing of a supplemental report of distribution
together with receipts or other evidence satisfactory to the court that
distribution has been made as ordered in the final decree, the court
shall enter an order of discharge. The discharge so obtained shall
operate as a release from the duties of personal representative and
shall operate as a bar to any suit including suits by persons under
disability, against the personal representative and his sureties except
suits which are commenced within one (1) year from the date of the
discharge and are based solely upon alleged mistake, fraud or wilful
misconduct on the part of the personal representative. (Formerly: Acts 1953, c.112, s.1713.)
IC 29-1-17-14 After discovered property; reopening estate; inheritance tax
Sec. 14. (a) If, after an estate has been settled and the personal
representative discharged, other property of the estate shall be
discovered, or if it shall appear that any necessary act remains
unperformed on the part of the personal representative, or for any
other proper cause, the court, upon the petition of the discharged
personal representative or any person interested in the estate and,
without notice or upon such notice as it may direct, may order that
said estate be reopened. It may reappoint the personal representative
or appoint another personal representative to administer such
property or perform such act as may be deemed necessary. Unless the
court shall otherwise order, the provisions of this article as to an
original administration shall apply to the proceedings had in the
reopened administration so far as may be, but no claim which is
already barred can be asserted in the reopened administration.
(b) Whenever any solvent estate has been closed, and it thereafter
appears that any assets thereof have not been fully administered
upon, the court may, if it appears practicable, order such assets
distributed to, or title vested in, the persons entitled thereto after
compliance with requirements as to an inheritance tax imposed under
IC 6-4.1, in lieu of reopening the estate as provided in the preceding
subsection. No additional notice of such proceedings shall be
necessary unless so ordered by the court. (Formerly: Acts 1953, c.112, s.1714.) As amended by Acts 1982,
P.L.171, SEC.49; P.L.254-1997(ss), SEC.29.
IC 29-1-17-15
Repealed
(Repealed by Acts 1973, P.L.289, SEC.4.)
IC 29-1-17-15.1 Petition to determine heirs of estate; contents; notice; hearing;
decree
Sec. 15.1. (a) Whenever any person has died leaving property or
any interest therein and no general administration has been
commenced on his estate in this state, nor has any will been offered
for probate in this state, within five (5) months after his death, any
person claiming an interest in such property as heir or through an
heir may file a petition in any court which would be of proper venue
for the administration of such decedent's estate, to determine the
heirs of said decedent and their respective interests as heirs in the
estate.
(b) The petition shall state:
(1) The name, age, domicile and date of death of the decedent;
(2) The names, ages and residence addresses of the heirs, so far
as known or can with reasonable diligence be ascertained;
(3) The names and residence addresses of any persons claiming
any interest in such property through an heir, so far as known or can
by reasonable diligence be ascertained;
(4) A particular description of the property with respect to which
such determination is sought;
(5) The net value of the estate.
(c) Upon the filing of the petition, the court shall fix the time for
the hearing thereof, notice of which shall be given to:
(1) All persons known or believed to claim any interest in the
property as heir or through an heir of the decedent;
(2) All persons who may at the date of the filing of the petition be
shown by the records of conveyances of the county in which any real
property described in such petition is located to claim any interest
therein through the heirs of the decedent; and
(3) Any unknown heirs of the decedent.
Such notice shall be given by publication and, in addition personal
notice by registered mail shall be given to every such person whose
address is known to the petitioner. Upon satisfactory proofs
including proof of compliance with inheritance tax laws of this state
the court shall make a decree determining the heirs of said decedent
and their respective interests as heirs in said property.
(d) A certified copy of the decree shall be recorded at the expense
of the petitioner in each county in which any real property described
therein is situated except the county in which the decree is entered,
and shall be conclusive evidence of the facts determined therein as
against all parties to the proceedings. (Formerly: Acts 1973, P.L.289, SEC.2; Acts 1975, P.L.288, SEC.37.)
IC 29-1-17-16 Rules of equity; relief not limited
Sec. 16. The limitations provided for in IC 29-1-1-21 and section
13 of this chapter shall not deprive any interested person of the relief
now afforded him under the rules of equity. (Formerly: Acts 1953, c.112, s.1716.) As amended by Acts 1982,
P.L.171, SEC.50.
IC 29-1-17-1 Order of court; perishable property; depreciable property; storage
or preservation; income and profits
Sec. 1. (a) At any time during the administration, upon application
of the personal representative or any distributee, with or without
notice as the court may direct, the court may order the personal
representative to deliver to any distributee, who consents to it,
possession of any specific real or tangible personal property to which
he is entitled under the terms of the will or by intestacy, provided
that other distributees and claimants are not prejudiced thereby. The
court may at any time prior to the decree of final distribution order
him to return such property to the personal representative if it is for
the best interest of the estate. The court may require the distributee
to give security for such return.
(b) At any time during the administration, when it is apparent that
the estate is solvent, the court in its discretion may order distribution
to the persons entitled thereto of such items of property of the estate
as:
(1) are perishable in nature,
(2) would materially depreciate in value if distribution were
delayed, or
(3) would necessitate the expenditure of estate funds for storage
or preservation if not distributed.
Such distribution may be with or without security or notice to the
interested parties as the court may direct.
(c) After the expiration of the time limited for the filing of claims
and before final settlement of the accounts of the personal
representative, a partial distribution may be decreed, with notice to
interested persons as the court may direct. Such distribution shall be
as conclusive as a decree of final distribution, except that the court
may, as provided in section 2(b) of this chapter, modify such decree
of partial distribution to the extent necessary to protect the other
distributees and claimants, and assure them that they will receive the
amount due them on final distribution. Before a partial distribution
is so decreed, the court may require that security be given for the
return of the property so distributed to the extent necessary to satisfy
any distributees and claimants who may be prejudiced as aforesaid
by the partial distribution.
(d) The person to whom possession or distribution has been made
under the provisions of this section, shall be entitled to the income
and profits from such property. (Formerly: Acts 1953, c.112, s.1701; Acts 1955, c.258, s.9.) As
amended by Acts 1982, P.L.171, SEC.48.
IC 29-1-17-2 Final accounts; decree of final distribution
Sec. 2. (a) After the expiration of the time limit for the filing of
claims, and after all claims against the estate, including state and
federal inheritance and estate taxes, have been determined, paid, or
provision made therefor, except contingent and unmatured claims
which cannot then be paid, the personal representative shall, if the
estate is in a condition to be closed, render a final account and at the
same time petition the court to decree the final distribution of the
estate. Notice of the hearing of the petition shall be given under
IC 29-1-16-6.
(b) In its decree of final distribution, the court shall designate the
persons to whom distribution is to be made, and the proportions or
parts of the estate, or the amounts, to which each is entitled under the
will and the provisions of this probate code, including the provisions
regarding advancements, election by the surviving spouse, lapse,
renunciation, adjudicated compromise of controversies, and retainer.
Every tract of real property so distributed shall be specifically
described therein. The decree shall find that all state and federal
inheritance and estate taxes are paid, and if all claims have been paid,
it shall so state; otherwise, the decree shall state that all claims
except those therein specified are paid and shall describe the claims
for the payment of which a special fund is set aside, and the amount
of such fund. If any contingent claims which have been duly allowed
are still unpaid and have not become absolute, such claims shall be
described in the decree, which shall state whether the distributees
take subject to them. If a fund is set aside for the payment of
contingent claims, the decree shall provide for the distribution of
such fund in the event that all or a part of it is not needed to satisfy
such contingent claims. If a decree of partial distribution has been
previously made, the decree of final distribution shall expressly
confirm it, or, for good cause, shall modify said decree and state
specifically what modifications are made.
(c) If a distributee dies before distribution to the distributee of the
distributee's share of the estate, the distributee's share may be
distributed to the personal representative of the distributee's estate,
if there is one; or if no administration on the deceased distributee's
estate is had and none is necessary according to IC 29-1-8, the share
of the deceased distributee shall be distributed in accordance with
IC 29-1-8.
(d) The decree of final distribution shall be a conclusive
determination of the persons who are the successors in interest to the
estate of the decedent and of the extent and character of their interest
therein, subject only to the right of appeal and the right to reopen the
decree. It shall operate as the final adjudication of the transfer of the
right, title, and interest of the decedent to the distributees therein
designated; but no transfer before or after the decedent's death by an
heir or devisee shall affect the decree, nor shall the decree affect any
rights so acquired by grantees from the heirs or devisees.
(e) Whenever the decree of final distribution includes real
property, a certified copy thereof shall be recorded by the personal
representative in every county of this state in which any real property
distributed by the decree is situated except the county in which the
estate is administered. The cost of recording such decree shall be
charged to the estate. (Formerly: Acts 1953, c.112, s.1702; Acts 1975, P.L.288, SEC.36.)
As amended by P.L.95-2007, SEC.11.
IC 29-1-17-3 Abatement of distributee shares
Sec. 3. (a) Except as provided in subsection (b) hereof, shares of
the distributees shall abate, for the payment of claims, legacies, the
allowance provided by IC 29-1-4-1, the shares of pretermitted heirs
or the share of the surviving spouse who elects to take against the
will, without any preference or priority as between real and personal
property, in the following order:
(1) Property not disposed of by the will.
(2) Property devised to the residuary devisee.
(3) Property disposed of by the will but not specifically devised
and not devised to the residuary devisee.
(4) Property specifically devised.
A general devise charged on any specific property or fund shall,
for purposes of abatement be deemed property specifically devised
to the extent of the value of the thing on which it is charged. Upon
the failure or insufficiency of the thing on which it is charged, it shall
be deemed property not specifically devised to the extent of such
failure or insufficiency.
(b) If the provisions of the will or the testamentary plan or the
express or implied purpose of the devise would be defeated by the
order of abatement stated in subsection (a) hereof, the shares of
distributees shall abate in such other manner as may be found
necessary to give effect to the intention of the testator. (Formerly: Acts 1953, c.112, s.1703.) As amended by Acts 1981,
P.L.260, SEC.2.
IC 29-1-17-4 Abatement of distributee shares; contribution by legatees and
devisees
Sec. 4. When real or personal property which has been
specifically devised, or charged with a legacy, shall be sold or taken
by the personal representative for the payment of claims, general
legacies, the allowance provided by IC 29-1-4-1, the shares of
pretermitted heirs or the share of the surviving spouse who elects to
take against the will, other legatees and devisees shall contribute
according to their respective interests to the legatee or devisee whose
legacy or devise has been sold or taken, so as to accomplish an
abatement in accordance with the provisions of IC 29-1-17-3. The
court shall, at the time of the hearing on the petition for final
distribution, determine the amounts of the respective contributions
and whether the same shall be made before distribution or shall
constitute a lien on specific property which is distributed. (Formerly: Acts 1953, c.112, s.1704.) As amended by Acts 1981,
P.L.260, SEC.3. IC 29-1-17-5 Advancements
Sec. 5. All questions of advancements made, or alleged to have
been made, by an intestate to any heir may be heard and determined
by the court before or at the time of the hearing on the petition for
final distribution. The amount of every such advancement shall be
specified in the decree of final distribution. (Formerly: Acts 1953, c.112, s.1705.)
IC 29-1-17-6 Indebtedness of distributee; offset
Sec. 6. When a distributee of an estate is indebted to the estate,
the amount of the indebtedness if due, or the present worth of the
indebtedness, if not due, may be treated as an offset by the personal
representative against any testate or intestate property, real or
personal, of the estate to which such distributee is entitled; but such
distributee shall be entitled to the benefit of any defense which
would be available to him in a direct proceeding for the recovery of
such debt. (Formerly: Acts 1953, c.112, s.1706.)
IC 29-1-17-7 Income received during administration
Sec. 7. Unless the decedent's will provides otherwise, all income
received by the personal representative during the administration of
the estate shall constitute an asset of the estate the same as any other
asset and the personal representative shall disburse, distribute,
account for and administer said income as a part of the corpus of the
estate. (Formerly: Acts 1953, c.112, s.1707.)
IC 29-1-17-8 General legacies; interest
Sec. 8. General legacies shall not bear interest, unless a contrary
intent is indicated by the will. (Formerly: Acts 1953, c.112, s.1708.)
IC 29-1-17-9 Specific devise; mortgage; pledge; lien
Sec. 9. When any real or personal property subject to a mortgage,
pledge or other lien is specifically devised, the devisee shall take
such property so devised subject to such mortgage unless the will
provides expressly or by necessary implication that such mortgage be
otherwise paid. If a mortgagee receives payment on a claim based
upon the obligation secured by such mortgage, the devise which was
subject to such mortgage shall be charged with the reimbursement to
the estate of the amount of such payment for the benefit of the
distributees entitled thereto. (Formerly: Acts 1953, c.112, s.1709.) IC 29-1-17-10 Distribution in kind; partition sale; election of distributee; annuity;
good faith purchasers or lenders
Sec. 10. (a) When the estate is otherwise ready to be distributed,
it shall be distributed in kind to whatever extent it is practicable,
unless the terms of the will otherwise provide or unless a partition
sale is ordered. Except as provided in subsection (b) of this section,
any general legatee may elect to take the value of his legacy in kind,
and any distributee, who by the terms of the will is to receive land or
any other thing to be purchased by the personal representative, may,
if he notifies the personal representative before the thing is
purchased, elect to take the purchase price or property of the estate
which the personal representative would otherwise sell to obtain such
purchase price. Values for the purposes of such distributions in kind
shall be determined at a time not more than ten (10) days prior to the
filing of the petition for distribution, and if necessary to avoid
substantial inequities may be redetermined at any time prior to the
order of distribution.
(b) If the terms of the will direct the purchase of an annuity, the
person to whom the income thereof shall be directed to be paid shall
not have the right to elect to take the capital sum directed to be used
for such purchase in lieu of such annuity except to the extent that the
will expressly provides that an assignable annuity be purchased.
Nothing herein contained shall affect the rights of election by a
surviving spouse against a testamentary provision as provided in this
article.
(c) If property distributed in kind or a security interest therein is
acquired in good faith for value by a purchaser from or lender to a
distributee who has received an instrument or deed of distribution or
release from the personal representative, or is so acquired in good
faith by a purchaser from or lender to a transferee of the distributee,
the purchaser or lender takes title free of any right of an interested
person in the estate and incurs no personal liability to the estate, or
to any interested person, whether or not the distribution was proper
or supported by court order or the authority of the personal
representative was terminated before execution of the instrument or
deed. This subsection protects a purchaser from or lender to a
distributee who, as personal representative, has executed a deed of
distribution to himself, and a purchaser from or lender to any other
distributee or his transferee. To be protected under this subsection,
a purchaser or lender need not inquire whether a personal
representative acted properly in making the distribution in kind, even
if the personal representative and the distributee are the same person,
or whether the authority of the personal representative had
terminated before the distribution. (Formerly: Acts 1953, c.112, s.1710.) As amended by Acts 1977,
P.L.297, SEC.4.
IC 29-1-17-11 Undivided interests; distribution, partition in kind or by sale,
distribution by total fair market value; appointment of
commissioner
Sec. 11. (a) When two (2) or more distributees are entitled to
distribution of undivided interests in any real or personal property of
the estate, distribution shall be made of undivided interests therein
unless the personal representative or one (1) or more of the
distributees petition the court not later than the hearing on the
petition for final distribution, to make partition thereof. If a petition
is filed, the court, after notice is given to all interested persons as the
court directs, shall proceed to make partition, allot and divide the
property in the same manner as provided by the statutes with respect
to civil actions for partition, so that each party receives property of
a value proportionate to the party's interest in the whole. The court
may direct the personal representative to sell any property which
cannot be partitioned without prejudice to the owners and which
cannot conveniently be allotted to any one (1) party. If partition is
made in kind, the court may appoint a commissioner to partition the
property, who shall have the powers and perform the duties of a
commissioner in civil actions for partition, and the court shall have
the same powers with respect to the commissioner's report as in civil
actions. If equal partition cannot be had between the parties without
prejudice to the rights or interests of some, partition may be made in
unequal shares and by awarding judgment for compensation to be
paid by one (1) or more parties to one (1) or more of the others. Any
two (2) or more parties may agree to accept undivided interests. Any
sale under this section shall be conducted and confirmed in the same
manner as other probate sales. The expenses of the partition,
including reasonable compensation to the commissioner, shall be
equitably apportioned by the court among the parties. Each party
must pay the party's own attorney's fees. The amount charged to each
party constitutes a lien on the property allotted to the party.
(b) If a distribution of particular assets of a decedent is to be made
to two (2) or more distributees that are entitled to receive fractional
shares in the assets, the decedent's personal representative may,
under an agreement among the distributees, distribute the particular
assets without distributing to each distributee a pro rata share of each
asset. However, the personal representative shall:
(1) distribute to each distributee a pro rata share of the total fair
market value of all the particular assets as of the date of
distribution; and
(2) divide the assets in a manner that results in a fair and
equitable division among the distributees of any capital gain or
loss on the assets. (Formerly: Acts 1953, c.112, s.1711.) As amended by P.L.265-1989,
SEC.1.
IC 29-1-17-12 Unclaimed estate assets; disposition procedures; escheat; time
limit; exceptions
Sec. 12. (a) If after reasonable search, satisfactory to the court,
there shall be no known heir of the decedent, all of his net estate not
disposed of by will shall be ordered paid to the state treasurer to
become a part of the common school fund, subject to the further
provisions of this section.
(b) If any heir, distributee, advisee, or claimant cannot be found
after reasonable search, satisfactory to the court, the personal
representative shall sell the share of the estate to which he is entitled,
pursuant to an order of court first obtained, and pay the proceeds to
the clerk of the court for use and benefit of the person or persons
thereafter determined to be entitled thereto according to law.
(c) When the personal representative shall pay any money to the
state treasurer or clerk of the court pursuant to this section, he shall
take a receipt therefor and file it with the court with the other
receipts filed in the proceeding. Such receipt shall be sufficient to
discharge the personal representative in the same manner and to the
same extent as though such distribution or payment were made to a
distributee or claimant entitled thereto.
(d) The moneys received by the state treasurer pursuant to the
provisions of this section shall be paid to the person entitled on proof
of his right thereto or in the case of an absentee, to the receiver of
such absentee's property, or, if the state treasurer refuses or fails to
pay because he is doubtful as to his duties in the premises, such
person may apply to the court in which the estate was administered,
whereupon the court upon notice to the state treasurer may determine
the person entitled thereto and order the treasurer to pay the same
accordingly. No interest shall be allowed thereon and such
distributee or claimant shall pay all costs and expenses incident to
the proceedings. If such proceeds are not paid or no application is
made to the court within seven (7) years after such payment to the
state treasurer, no recovery thereof shall be had.
(e) This section does not apply to stocks, dividends, capital
credits, patronage refunds, utility deposits, membership fees, account
balances, or book equities for which the owner cannot be found and
that are the result of distributable savings of a rural electric
membership corporation formed under IC 8-1-13, a rural telephone
cooperative corporation formed under IC 8-1-17, or an agricultural
cooperative association formed under IC 15-12-1. (Formerly: Acts 1953, c.112, s.1712.) As amended by Acts 1981,
P.L.106, SEC.4; P.L.2-2008, SEC.69.
IC 29-1-17-13 Supplemental reports; discharge; limitation of actions
Sec. 13. Upon the filing of a supplemental report of distribution
together with receipts or other evidence satisfactory to the court that
distribution has been made as ordered in the final decree, the court
shall enter an order of discharge. The discharge so obtained shall
operate as a release from the duties of personal representative and
shall operate as a bar to any suit including suits by persons under
disability, against the personal representative and his sureties except
suits which are commenced within one (1) year from the date of the
discharge and are based solely upon alleged mistake, fraud or wilful
misconduct on the part of the personal representative. (Formerly: Acts 1953, c.112, s.1713.)
IC 29-1-17-14 After discovered property; reopening estate; inheritance tax
Sec. 14. (a) If, after an estate has been settled and the personal
representative discharged, other property of the estate shall be
discovered, or if it shall appear that any necessary act remains
unperformed on the part of the personal representative, or for any
other proper cause, the court, upon the petition of the discharged
personal representative or any person interested in the estate and,
without notice or upon such notice as it may direct, may order that
said estate be reopened. It may reappoint the personal representative
or appoint another personal representative to administer such
property or perform such act as may be deemed necessary. Unless the
court shall otherwise order, the provisions of this article as to an
original administration shall apply to the proceedings had in the
reopened administration so far as may be, but no claim which is
already barred can be asserted in the reopened administration.
(b) Whenever any solvent estate has been closed, and it thereafter
appears that any assets thereof have not been fully administered
upon, the court may, if it appears practicable, order such assets
distributed to, or title vested in, the persons entitled thereto after
compliance with requirements as to an inheritance tax imposed under
IC 6-4.1, in lieu of reopening the estate as provided in the preceding
subsection. No additional notice of such proceedings shall be
necessary unless so ordered by the court. (Formerly: Acts 1953, c.112, s.1714.) As amended by Acts 1982,
P.L.171, SEC.49; P.L.254-1997(ss), SEC.29.
IC 29-1-17-15
Repealed
(Repealed by Acts 1973, P.L.289, SEC.4.)
IC 29-1-17-15.1 Petition to determine heirs of estate; contents; notice; hearing;
decree
Sec. 15.1. (a) Whenever any person has died leaving property or
any interest therein and no general administration has been
commenced on his estate in this state, nor has any will been offered
for probate in this state, within five (5) months after his death, any
person claiming an interest in such property as heir or through an
heir may file a petition in any court which would be of proper venue
for the administration of such decedent's estate, to determine the
heirs of said decedent and their respective interests as heirs in the
estate.
(b) The petition shall state:
(1) The name, age, domicile and date of death of the decedent;
(2) The names, ages and residence addresses of the heirs, so far
as known or can with reasonable diligence be ascertained;
(3) The names and residence addresses of any persons claiming
any interest in such property through an heir, so far as known or can
by reasonable diligence be ascertained;
(4) A particular description of the property with respect to which
such determination is sought;
(5) The net value of the estate.
(c) Upon the filing of the petition, the court shall fix the time for
the hearing thereof, notice of which shall be given to:
(1) All persons known or believed to claim any interest in the
property as heir or through an heir of the decedent;
(2) All persons who may at the date of the filing of the petition be
shown by the records of conveyances of the county in which any real
property described in such petition is located to claim any interest
therein through the heirs of the decedent; and
(3) Any unknown heirs of the decedent.
Such notice shall be given by publication and, in addition personal
notice by registered mail shall be given to every such person whose
address is known to the petitioner. Upon satisfactory proofs
including proof of compliance with inheritance tax laws of this state
the court shall make a decree determining the heirs of said decedent
and their respective interests as heirs in said property.
(d) A certified copy of the decree shall be recorded at the expense
of the petitioner in each county in which any real property described
therein is situated except the county in which the decree is entered,
and shall be conclusive evidence of the facts determined therein as
against all parties to the proceedings. (Formerly: Acts 1973, P.L.289, SEC.2; Acts 1975, P.L.288, SEC.37.)
IC 29-1-17-16 Rules of equity; relief not limited
Sec. 16. The limitations provided for in IC 29-1-1-21 and section
13 of this chapter shall not deprive any interested person of the relief
now afforded him under the rules of equity. (Formerly: Acts 1953, c.112, s.1716.) As amended by Acts 1982,
P.L.171, SEC.50.
