CHAPTER 1. GENERAL PROVISIONS
IC 29
TITLE 29. PROBATE
IC 29-1
ARTICLE 1. PROBATE CODE
IC 29-1-1
Chapter 1. General Provisions
IC 29-1-1-1
Short title
Sec. 1. This article shall be known and may be cited as theProbate 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 allproceedings in probate brought after January 1, 1954; and also allfurther procedure in probate proceedings then pending, except to theextent that in the opinion of the court their application in particularproceedings or parts thereof would not be feasible or would workinjustice, 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. Whena right is acquired, extinguished or barred upon the expiration of aprescribed period of time which has commenced to run by theprovision of the law in force at the time, such provision shall remainin force and be deemed a part of this article with respect to suchright, and not withstanding any of the provisions of this article, theperson or persons who shall be entitled to take or receive anyproperty, right, power or interest on the final settlement anddistribution of any estate pending or any trust being administered onJanuary 1, 1954 shall be determined, and his or their rights, powersand interest shall be governed by the statutes and applicabledecisions in force and effect immediately prior to January 1, 1954.
(c) If any provision of this article or the application thereof to anyperson or circumstances is held invalid, such invalidity shall notaffect other provisions or applications of the article which can begiven effect without the invalid provision or application, and to thisend 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 agrandchild or other more remote descendants, nor, except asprovided 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, funeralexpenses, the expense of a tombstone, expenses ofadministration, and all taxes imposed by reason of the person'sdeath. 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 theperson'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 atestamentary disposition of either real or personal property orboth.
(6) "Devise", when used as a verb, means to dispose of eitherreal or personal property or both by will.
(7) "Devisee" includes legatee, and "legatee" includes devisee.
(8) "Distributee" denotes those persons who are entitled to thereal and personal property of a decedent under a will, under thestatutes of intestate succession, or under IC 29-1-4-1.
(9) "Estate" denotes the real and personal property of thedecedent or protected person, as from time to time changed inform by sale, reinvestment, or otherwise, and augmented by anyaccretions and additions thereto and substitutions therefor anddiminished 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 behalfof a protected person.
(11) "Heirs" denotes those persons, including the survivingspouse, who are entitled under the statutes of intestatesuccession to the real and personal property of a decedent onthe decedent's death intestate, unless otherwise defined orlimited 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 claimagainst the estate of a decedent being administered. Thismeaning may vary at different stages and different parts of aproceeding and must be determined according to the particularpurpose and matter involved.
(14) "Issue" of a person, when used to refer to persons who takeby intestate succession, includes all lawful lineal descendantsexcept those who are lineal descendants of living linealdescendants of the intestate.
(15) "Lease" includes an oil and gas lease or other mineral
lease.
(16) "Letters" includes letters testamentary, letters ofadministration, and letters of guardianship.
(17) "Minor" or "minor child" or "minority" refers to anyperson under the age of eighteen (18) years.
(18) "Mortgage" includes deed of trust, vendor's lien, andchattel mortgage.
(19) "Net estate" refers to the real and personal property of adecedent less the allowances provided under IC 29-1-4-1 andenforceable 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 inIC 29-3-1-13.
(25) "Real property" includes estates and interests in land,corporeal or incorporeal, legal or equitable, other than chattelsreal.
(26) "Will" includes all wills, testaments, and codicils. The termalso includes a testamentary instrument which merely appointsan executor or revokes or revives another will.
(b) The following rules of construction apply throughout thisarticle unless otherwise apparent from the context:
(1) The singular number includes the plural and the pluralnumber 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.) Asamended 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 madepursuant to Acts 1949, c. 302, s. 5 and Acts 1951, c. 347, s. 2 may beconsulted by the courts to determine the underlying reasons,purposes and policies of this article, and may be used as a guide inits 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 thethird degree of consanguinity, according to the civil law, to any ofthe parties or their attorneys, shall have drawn the will of thedecedent, or shall be interested or have been counsel in any probateproceeding or any matter therein, the same shall be grounds fordisqualifying such judge from acting in a controverted matter withrespect to which his disqualification exists. When grounds fordisqualification exist, the judge may refuse to act as judge therein;or, upon filing of a petition to disqualify such judge, stating thegrounds therefor, by any person interested in the particular matterwith respect to which his disqualification exists, the judge must notact therein. The grounds for disqualification stated herein areenumerated as additional grounds, and not in limitation of applicablegrounds for disqualification provided by statute or by Supreme Courtrule 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 procedurefor probate proceedings, not inconsistent with the provisions of thisarticle nor with such rules and forms as are promulgated by thesupreme court. If in any probate proceeding a situation arises whichis not provided for by any statute or rule of procedure, the court mayformulate 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 thepetitioner. No defect of form or substance in any petition, nor theabsence of a petition, shall invalidate any proceedings. Interests to beaffected shall be described in pleadings that give reasonableinformation to owners by name or class, by reference to theinstrument 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 ofthe 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, onor before the day set for hearing, may file written objections oranswers thereto, and, upon special order or general rule of the court,objections or answers thereto must be filed in writing as aprerequisite 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 asspecifically provided for in this article or as ordered by the court.When no notice is required by this article, the court may require suchnotice as it deems desirable by a general rule or by an order in aparticular case. Notice is required as follows:
(1) Notice as prescribed by this chapter must be given to everyinterested person or to one who can bind an interested person asdescribed in section 20(a)(1) through 20(a)(3) of this chapter orIC 29-3-2-4. Notice may be given both to a person and toanother who may bind him.
(2) Notice is given to unborn or unascertained persons, who arenot represented as described in section 20(a)(1) through20(a)(3) of this chapter or IC 29-3-2-4, by giving notice to allknown persons whose interests in the proceedings aresubstantially identical to those of the unborn or unascertainedpersons.
(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 bylaw, all notices required by this article to be served upon any personshall 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 acopy of the notice at the person's last and usual place ofresidence, at least ten (10) days before the hearing, if the personis a resident of the state of Indiana;
(2) publication, if the person is a nonresident of the state ofIndiana or if the person's residence is unknown, once each weekfor three (3) weeks consecutively in a newspaper printed andcirculating in the county where the court is held, the first day ofpublication to be at least thirty (30) days prior to the date set forhearing; or in case there is no newspaper printed in the county,then in a newspaper circulating in the county where theproceeding is pending, and designated by the judge or clerk;
(3) first class postage prepaid mail addressed to the personlocated in the United States, at the person's address stated in thepetition for the hearing, to be posted by depositing in anyUnited 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 officerauthorized to serve process in the county of the nonresident,which notice shall be served at least fourteen (14) days prior tothe 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 butpersonal service or service by registered mail is not ordered, allpersons directed by the provisions of this article, or by order of thecourt, to be notified, whose names and addresses are known or canby reasonable diligence be ascertained by the party charged with theduty of giving notice, shall in addition to the published noticerequired by order, be served by a written notice by United States firstclass postage prepaid mail at least fourteen (14) days prior to the dateset for hearing in the notice.
(c) The personal representative or party charged with the duty ofgiving notice shall furnish the clerk with sufficient copies of thenotice, 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 theclerk at the instance of the party who requires such service to bemade. Personal service may be made by any competent person unlessotherwise 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 inwriting for any person in any probate proceeding or matter pendingin the court, all notices required to be served on the person in suchproceeding or matter may be served on the attorney and such serviceshall be in lieu of service upon the person for whom the attorneyappears.
(b) Notices to the personal representative may similarly be servedon 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 courtby rule or order. A notice shall be deemed sufficient if it shall setforth 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 aresponsive 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 bypublication, mailing or otherwise, shall be filed before the hearing.Service made by a private person shall be proved by the affidavit ofthe person; service made by the clerk or other official shall be provedby 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 anycourt in this state, and be deemed sufficient proof of the matters andthings 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 thischapter shall preclude any person from proving in any suit orproceeding that the provisions of this article respecting such noticehave been complied with, although no such proof of service mayhave 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 beserved with notice of any hearing in a probate proceeding may inperson or by attorney waive in writing issuance and service of noticeof the hearing. A guardian of the estate or a guardian ad litem maymake the waiver on behalf of a protected person. A consul or otherrepresentative of a foreign government, whose appearance has beenentered as provided by law on behalf of a person residing in a foreigncountry, may make a waiver of notice on behalf of the person. Anyperson who submits to the jurisdiction of the court in any hearingshall 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 ortrusts, or in judicially supervised settlements, persons are bound byorders binding others in the following cases:
(1) Orders binding the sole holder or all co-holders of a powerof revocation or a presently exercisable general power of
appointment, including one in the form of a power ofamendment, bind other persons to the extent their interests (asobjects, takers in default, or otherwise) are subject to the power.
(2) Orders binding a trustee bind beneficiaries of the trust inproceedings:
(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 personsinterested in the undistributed assets of a decedent's estate inactions or proceedings by or against the estate. If there is noconflict of interest and no guardian of the estate or person hasbeen 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 upondiligent 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 isadequately represented by another party having a substantiallyidentical interest in the proceeding.
(b) At any point in a proceeding, a court may appoint a guardianad litem to represent the interest of a minor, an incapacitated, unborn,or unascertained person, or a person whose identity or address isunknown, if the court determines that representation of the interestotherwise would be inadequate. If not precluded by conflict ofinterests, a guardian ad litem may be appointed to represent severalpersons or interests. The court shall set out its reasons for appointinga guardian ad litem as a part of the record of the proceeding. Anyguardian of the person or estate of the person having an interest maybe appointed as a guardian ad litem.
(c) The compensation of a guardian or guardian ad litem and theguardian's expenses including attorney's fees for services rendered inany proceeding under this article may be allowed in such amount andordered paid either out of the entire estate involved as an expense ofadministration, or out of the protected person's interest therein as thecourt in its discretion shall determine.
(d) Any adjudication involving the interests of persons consideredrepresented under this section shall be lawful and binding upon allinterested persons, whether born or unborn, whether notified or notnotified, and whether represented or not, if the interested persons areof the same class or have interests similar to the predominantinterests 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 filedwithin 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 suchorder, judgment or decree shall be vacated or modified, notice ofsuch application and hearing shall be given to the personalrepresentative and all interested persons as provided in section 12 ofthis chapter. No vacation or modification under this section shallaffect any right acquired by any innocent person in reliance upon anysuch 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 anydecision of a court having probate jurisdiction in proceedings underthis article may prosecute an appeal to the court having jurisdictionof such appeal. Such appeal shall be taken as appeals are taken incivil causes. Executors, administrators, guardians and fiduciariesmay 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 articleshall be maintained in addition to other records as the court havingprobate jurisdiction shall provide for:
(1) An index in which estates of deceased persons shall beindexed under the name of the decedent, and those pertaining toguardianships under the name of the protected person. After thename of each shall be shown the docket number and pagewherein entries pertaining to such decedent's or ward's estateappear.
(2) Decedent's and guardianship estate dockets, in which shallbe listed in chronological order under the name of the decedentor 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 inwhich any record shall have been made of such document.
(3) A record of wills, properly indexed, in which shall berecorded all wills admitted to probate and a record of thetestimony of a witness examined, subscribed by the witness andattested by the clerk with the clerk's signature and seal of office.The will with the testimony and attestation to be certified by theclerk to be a complete record.
(4) An order book, in which shall be entered all proceedingswith respect to the estate in conformity with the law pertainingto order books of circuit courts of this state and with the rulesof the court.
(Formerly: Acts 1953, c.112, s.123.) As amended by Acts 1982,
P.L.171, SEC.12; P.L.33-1989, SEC.34; P.L.50-1991, SEC.18;P.L.4-1994, SEC.11; P.L.2-1995, SEC.115.
IC 29-1-1-24
Fraud; relief for injured parties
Sec. 24. Whenever fraud has been perpetrated in connection withany proceeding or in any statement filed under this probate code orif fraud is used to avoid or circumvent the provisions or purposes ofthis probate code, any person injured thereby may obtain appropriaterelief against the perpetrator of the fraud including restitution fromany person (other than a bona fide purchaser) benefiting from thefraud, whether innocent or not. This section has no bearing onremedies relating to fraud practiced on a decedent during his lifetimewhich affects the succession of his estate.
(Formerly: Acts 1975, P.L.288, SEC.1.)