CHAPTER 17. DISTRIBUTION AND DISCHARGE
IC 29-1-17
Chapter 17. Distribution and Discharge
IC 29-1-17-1
Order of court; perishable property; depreciable property; storageor preservation; income and profits
Sec. 1. (a) At any time during the administration, upon applicationof the personal representative or any distributee, with or withoutnotice as the court may direct, the court may order the personalrepresentative to deliver to any distributee, who consents to it,possession of any specific real or tangible personal property to whichhe is entitled under the terms of the will or by intestacy, providedthat other distributees and claimants are not prejudiced thereby. Thecourt may at any time prior to the decree of final distribution orderhim to return such property to the personal representative if it is forthe best interest of the estate. The court may require the distributeeto give security for such return.
(b) At any time during the administration, when it is apparent thatthe estate is solvent, the court in its discretion may order distributionto the persons entitled thereto of such items of property of the estateas:
(1) are perishable in nature,
(2) would materially depreciate in value if distribution weredelayed, or
(3) would necessitate the expenditure of estate funds for storageor preservation if not distributed.
Such distribution may be with or without security or notice to theinterested parties as the court may direct.
(c) After the expiration of the time limited for the filing of claimsand before final settlement of the accounts of the personalrepresentative, a partial distribution may be decreed, with notice tointerested persons as the court may direct. Such distribution shall beas conclusive as a decree of final distribution, except that the courtmay, as provided in section 2(b) of this chapter, modify such decreeof partial distribution to the extent necessary to protect the otherdistributees and claimants, and assure them that they will receive theamount due them on final distribution. Before a partial distributionis so decreed, the court may require that security be given for thereturn of the property so distributed to the extent necessary to satisfyany distributees and claimants who may be prejudiced as aforesaidby the partial distribution.
(d) The person to whom possession or distribution has been madeunder the provisions of this section, shall be entitled to the incomeand profits from such property.
(Formerly: Acts 1953, c.112, s.1701; Acts 1955, c.258, s.9.) Asamended 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 andfederal inheritance and estate taxes, have been determined, paid, orprovision made therefor, except contingent and unmatured claimswhich cannot then be paid, the personal representative shall, if theestate is in a condition to be closed, render a final account and at thesame time petition the court to decree the final distribution of theestate. Notice of the hearing of the petition shall be given underIC 29-1-16-6.
(b) In its decree of final distribution, the court shall designate thepersons to whom distribution is to be made, and the proportions orparts of the estate, or the amounts, to which each is entitled under thewill and the provisions of this probate code, including the provisionsregarding advancements, election by the surviving spouse, lapse,renunciation, adjudicated compromise of controversies, and retainer.Every tract of real property so distributed shall be specificallydescribed therein. The decree shall find that all state and federalinheritance and estate taxes are paid, and if all claims have been paid,it shall so state; otherwise, the decree shall state that all claimsexcept those therein specified are paid and shall describe the claimsfor the payment of which a special fund is set aside, and the amountof such fund. If any contingent claims which have been duly allowedare still unpaid and have not become absolute, such claims shall bedescribed in the decree, which shall state whether the distributeestake subject to them. If a fund is set aside for the payment ofcontingent claims, the decree shall provide for the distribution ofsuch fund in the event that all or a part of it is not needed to satisfysuch contingent claims. If a decree of partial distribution has beenpreviously made, the decree of final distribution shall expresslyconfirm it, or, for good cause, shall modify said decree and statespecifically what modifications are made.
(c) If a distributee dies before distribution to the distributee of thedistributee's share of the estate, the distributee's share may bedistributed to the personal representative of the distributee's estate,if there is one; or if no administration on the deceased distributee'sestate is had and none is necessary according to IC 29-1-8, the shareof the deceased distributee shall be distributed in accordance withIC 29-1-8.
(d) The decree of final distribution shall be a conclusivedetermination of the persons who are the successors in interest to theestate of the decedent and of the extent and character of their interesttherein, subject only to the right of appeal and the right to reopen thedecree. It shall operate as the final adjudication of the transfer of theright, title, and interest of the decedent to the distributees thereindesignated; but no transfer before or after the decedent's death by anheir or devisee shall affect the decree, nor shall the decree affect anyrights so acquired by grantees from the heirs or devisees.
(e) Whenever the decree of final distribution includes realproperty, a certified copy thereof shall be recorded by the personalrepresentative in every county of this state in which any real propertydistributed by the decree is situated except the county in which the
estate is administered. The cost of recording such decree shall becharged 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 ofthe distributees shall abate, for the payment of claims, legacies, theallowance provided by IC 29-1-4-1, the shares of pretermitted heirsor the share of the surviving spouse who elects to take against thewill, without any preference or priority as between real and personalproperty, 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 devisedand 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 devisedto the extent of the value of the thing on which it is charged. Uponthe failure or insufficiency of the thing on which it is charged, it shallbe deemed property not specifically devised to the extent of suchfailure or insufficiency.
(b) If the provisions of the will or the testamentary plan or theexpress or implied purpose of the devise would be defeated by theorder of abatement stated in subsection (a) hereof, the shares ofdistributees shall abate in such other manner as may be foundnecessary 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 anddevisees
Sec. 4. When real or personal property which has beenspecifically devised, or charged with a legacy, shall be sold or takenby the personal representative for the payment of claims, generallegacies, the allowance provided by IC 29-1-4-1, the shares ofpretermitted heirs or the share of the surviving spouse who elects totake against the will, other legatees and devisees shall contributeaccording to their respective interests to the legatee or devisee whoselegacy or devise has been sold or taken, so as to accomplish anabatement in accordance with the provisions of IC 29-1-17-3. Thecourt shall, at the time of the hearing on the petition for finaldistribution, determine the amounts of the respective contributionsand whether the same shall be made before distribution or shallconstitute 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 havebeen made, by an intestate to any heir may be heard and determinedby the court before or at the time of the hearing on the petition forfinal distribution. The amount of every such advancement shall bespecified 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 theindebtedness, if not due, may be treated as an offset by the personalrepresentative against any testate or intestate property, real orpersonal, of the estate to which such distributee is entitled; but suchdistributee shall be entitled to the benefit of any defense whichwould be available to him in a direct proceeding for the recovery ofsuch 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 incomereceived by the personal representative during the administration ofthe estate shall constitute an asset of the estate the same as any otherasset and the personal representative shall disburse, distribute,account for and administer said income as a part of the corpus of theestate.
(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 contraryintent 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 takesuch property so devised subject to such mortgage unless the willprovides expressly or by necessary implication that such mortgage beotherwise paid. If a mortgagee receives payment on a claim basedupon the obligation secured by such mortgage, the devise which wassubject to such mortgage shall be charged with the reimbursement tothe estate of the amount of such payment for the benefit of thedistributees 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 partitionsale 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 orany other thing to be purchased by the personal representative, may,if he notifies the personal representative before the thing ispurchased, elect to take the purchase price or property of the estatewhich the personal representative would otherwise sell to obtain suchpurchase price. Values for the purposes of such distributions in kindshall be determined at a time not more than ten (10) days prior to thefiling of the petition for distribution, and if necessary to avoidsubstantial inequities may be redetermined at any time prior to theorder of distribution.
(b) If the terms of the will direct the purchase of an annuity, theperson to whom the income thereof shall be directed to be paid shallnot have the right to elect to take the capital sum directed to be usedfor such purchase in lieu of such annuity except to the extent that thewill expressly provides that an assignable annuity be purchased.Nothing herein contained shall affect the rights of election by asurviving spouse against a testamentary provision as provided in thisarticle.
(c) If property distributed in kind or a security interest therein isacquired in good faith for value by a purchaser from or lender to adistributee who has received an instrument or deed of distribution orrelease from the personal representative, or is so acquired in goodfaith by a purchaser from or lender to a transferee of the distributee,the purchaser or lender takes title free of any right of an interestedperson in the estate and incurs no personal liability to the estate, orto any interested person, whether or not the distribution was properor supported by court order or the authority of the personalrepresentative was terminated before execution of the instrument ordeed. This subsection protects a purchaser from or lender to adistributee who, as personal representative, has executed a deed ofdistribution to himself, and a purchaser from or lender to any otherdistributee or his transferee. To be protected under this subsection,a purchaser or lender need not inquire whether a personalrepresentative acted properly in making the distribution in kind, evenif the personal representative and the distributee are the same person,or whether the authority of the personal representative hadterminated 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 ofcommissioner
Sec. 11. (a) When two (2) or more distributees are entitled todistribution of undivided interests in any real or personal property ofthe estate, distribution shall be made of undivided interests thereinunless the personal representative or one (1) or more of thedistributees petition the court not later than the hearing on thepetition for final distribution, to make partition thereof. If a petitionis filed, the court, after notice is given to all interested persons as thecourt directs, shall proceed to make partition, allot and divide theproperty in the same manner as provided by the statutes with respectto civil actions for partition, so that each party receives property ofa value proportionate to the party's interest in the whole. The courtmay direct the personal representative to sell any property whichcannot be partitioned without prejudice to the owners and whichcannot conveniently be allotted to any one (1) party. If partition ismade in kind, the court may appoint a commissioner to partition theproperty, who shall have the powers and perform the duties of acommissioner in civil actions for partition, and the court shall havethe same powers with respect to the commissioner's report as in civilactions. If equal partition cannot be had between the parties withoutprejudice to the rights or interests of some, partition may be made inunequal shares and by awarding judgment for compensation to bepaid by one (1) or more parties to one (1) or more of the others. Anytwo (2) or more parties may agree to accept undivided interests. Anysale under this section shall be conducted and confirmed in the samemanner as other probate sales. The expenses of the partition,including reasonable compensation to the commissioner, shall beequitably apportioned by the court among the parties. Each partymust pay the party's own attorney's fees. The amount charged to eachparty constitutes a lien on the property allotted to the party.
(b) If a distribution of particular assets of a decedent is to be madeto two (2) or more distributees that are entitled to receive fractionalshares in the assets, the decedent's personal representative may,under an agreement among the distributees, distribute the particularassets without distributing to each distributee a pro rata share of eachasset. However, the personal representative shall:
(1) distribute to each distributee a pro rata share of the total fairmarket value of all the particular assets as of the date ofdistribution; and
(2) divide the assets in a manner that results in a fair andequitable division among the distributees of any capital gain orloss 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; timelimit; 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 notdisposed of by will shall be ordered paid to the state treasurer tobecome a part of the common school fund, subject to the furtherprovisions of this section.
(b) If any heir, distributee, advisee, or claimant cannot be foundafter reasonable search, satisfactory to the court, the personalrepresentative shall sell the share of the estate to which he is entitled,pursuant to an order of court first obtained, and pay the proceeds tothe clerk of the court for use and benefit of the person or personsthereafter determined to be entitled thereto according to law.
(c) When the personal representative shall pay any money to thestate treasurer or clerk of the court pursuant to this section, he shalltake a receipt therefor and file it with the court with the otherreceipts filed in the proceeding. Such receipt shall be sufficient todischarge the personal representative in the same manner and to thesame extent as though such distribution or payment were made to adistributee or claimant entitled thereto.
(d) The moneys received by the state treasurer pursuant to theprovisions of this section shall be paid to the person entitled on proofof his right thereto or in the case of an absentee, to the receiver ofsuch absentee's property, or, if the state treasurer refuses or fails topay because he is doubtful as to his duties in the premises, suchperson may apply to the court in which the estate was administered,whereupon the court upon notice to the state treasurer may determinethe person entitled thereto and order the treasurer to pay the sameaccordingly. No interest shall be allowed thereon and suchdistributee or claimant shall pay all costs and expenses incident tothe proceedings. If such proceeds are not paid or no application ismade to the court within seven (7) years after such payment to thestate treasurer, no recovery thereof shall be had.
(e) This section does not apply to stocks, dividends, capitalcredits, patronage refunds, utility deposits, membership fees, accountbalances, or book equities for which the owner cannot be found andthat are the result of distributable savings of a rural electricmembership corporation formed under IC 8-1-13, a rural telephonecooperative corporation formed under IC 8-1-17, or an agriculturalcooperative 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 distributiontogether with receipts or other evidence satisfactory to the court thatdistribution has been made as ordered in the final decree, the courtshall enter an order of discharge. The discharge so obtained shalloperate as a release from the duties of personal representative andshall operate as a bar to any suit including suits by persons underdisability, against the personal representative and his sureties exceptsuits which are commenced within one (1) year from the date of the
discharge and are based solely upon alleged mistake, fraud or wilfulmisconduct 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 personalrepresentative discharged, other property of the estate shall bediscovered, or if it shall appear that any necessary act remainsunperformed on the part of the personal representative, or for anyother proper cause, the court, upon the petition of the dischargedpersonal representative or any person interested in the estate and,without notice or upon such notice as it may direct, may order thatsaid estate be reopened. It may reappoint the personal representativeor appoint another personal representative to administer suchproperty or perform such act as may be deemed necessary. Unless thecourt shall otherwise order, the provisions of this article as to anoriginal administration shall apply to the proceedings had in thereopened administration so far as may be, but no claim which isalready barred can be asserted in the reopened administration.
(b) Whenever any solvent estate has been closed, and it thereafterappears that any assets thereof have not been fully administeredupon, the court may, if it appears practicable, order such assetsdistributed to, or title vested in, the persons entitled thereto aftercompliance with requirements as to an inheritance tax imposed underIC 6-4.1, in lieu of reopening the estate as provided in the precedingsubsection. No additional notice of such proceedings shall benecessary 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 orany interest therein and no general administration has beencommenced on his estate in this state, nor has any will been offeredfor probate in this state, within five (5) months after his death, anyperson claiming an interest in such property as heir or through anheir may file a petition in any court which would be of proper venuefor the administration of such decedent's estate, to determine theheirs of said decedent and their respective interests as heirs in theestate.
(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 claimingany interest in such property through an heir, so far as known or canby reasonable diligence be ascertained;
(4) A particular description of the property with respect to whichsuch determination is sought;
(5) The net value of the estate.
(c) Upon the filing of the petition, the court shall fix the time forthe hearing thereof, notice of which shall be given to:
(1) All persons known or believed to claim any interest in theproperty as heir or through an heir of the decedent;
(2) All persons who may at the date of the filing of the petition beshown by the records of conveyances of the county in which any realproperty described in such petition is located to claim any interesttherein through the heirs of the decedent; and
(3) Any unknown heirs of the decedent.
Such notice shall be given by publication and, in addition personalnotice by registered mail shall be given to every such person whoseaddress is known to the petitioner. Upon satisfactory proofsincluding proof of compliance with inheritance tax laws of this statethe court shall make a decree determining the heirs of said decedentand their respective interests as heirs in said property.
(d) A certified copy of the decree shall be recorded at the expenseof the petitioner in each county in which any real property describedtherein is situated except the county in which the decree is entered,and shall be conclusive evidence of the facts determined therein asagainst 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 section13 of this chapter shall not deprive any interested person of the reliefnow afforded him under the rules of equity.
(Formerly: Acts 1953, c.112, s.1716.) As amended by Acts 1982,P.L.171, SEC.50.