On October 25, 2022, Attorney Benjamin T. Ballou presented at the LCBA Probate and Trust Law Committee seminar on “Unsupervised Administrations—From the Practitioner’s Perspective”.
On October 19, 2022, Attorney Benjamin T. Ballou attended a Crown Point Community Foundation Executive Committee meeting.
On October 18, 2022, Attorney Benjamin T. Ballou attended an IHSAA Case Review Panel Hearing.
On October 17, 2022, Attorney Steven J. Scott attended the monthly Illiana Christian School Board meeting.
On October 11, 2022, Attorney Benjamin T. Ballou attended an IHSAA Case Review Panel Hearing.
The Indiana legislature was quite busy this past session regarding probate and trust law when it passed HEA 1205, HEA 1208, SEA 66, SEA 67 and SEA 193. This update will focus on SEA 66, which became effective July 1, 2022.
When a solvent supervised estate is ready to be closed and the assets distributed, certain actions must be taken by the court-appointed personal representative. First, a final account must be filed and approved by the court. Once approved, the personal representative then proceeds to distribute the estate assets to the individuals entitled thereto (heirs, if there is no will, and legatees/devisees if there is a will). After distribution occurs, the personal representative must file a Supplemental Report of Distribution advising the court that all distributions have been made and requesting discharge from any further liability or responsibility. The court then enters an order approving the Supplemental Report of Distribution, discharges the personal representative, and closes the estate.
What if an asset listed in the Final Account has not been distributed after the court enters the order closing the estate? The legislature passed SEA 66 to provide a mechanism to address this particular situation.
A distributee entitled to the asset specifically described in the Final Account can file or record an affidavit with the court which: (1) states the cause number and caption of the estate; (2) states the date on which the decree of final distribution was entered by the court; (3) identifies the undistributed asset described in the decree and to which the distributee is entitled; (4) states the interest in the assets that has passed to the distributee who signs the affidavit and to each other distributee who has an interest in the asset; and (5) states that the undistributed asset has passed by operation of law pursuant to I.C. 29-1-7-23(a) to the distributee who signs the affidavit, as a result of the decedent’s death and the entry of the decree of final distribution. I.C. § 29-1-17-13.5(b).
If the undistributed asset consists of an interest in real property, the affidavit and the decree of final distribution must be filed with the county recorder where the real property is located. I.C. § 29-1-17-13.5(d).
In addition, the statute provides the personal representative with powers to complete distribution and delivery of undistributed assets for a period of 90 days after the order of discharge. I.C. § 29-1-17-13.5(e). During this period, the personal representative can execute documentation to assign or transfer undistributed personal property without further order of the court. The personal representative is also empowered to sign and record a Personal Representative’s Deed to complete the distribution of real property.
The distributee can also petition the court during the 90-day period following discharge for an order compelling the personal representative to sign and deliver, or to sign and record, a Personal Representative’s Deed or other assignment or transfer document to complete the distribution of the asset. If timely filed, the court’s order is effective without notice to any persons other than the personal representative and the distributee who filed the petition, even if the order is issued after the expiration of the 90-day period.
While the goal is to ensure that all assets are distributed before an estate is closed, there are instances when this simply does not occur for some reason. Recognizing that this scenario can present itself, the legislature proactively enacted SEA 193 to provide flexibility to the estate distributees and the personal representative in the event this situation arises.
Please note that this post is only a brief summary of SEA 66 and does not constitute legal advice nor does it establish an attorney/client relationship. Should you have specific questions regarding the above, please contact Benjamin T. Ballou at Hodges and Davis, P.C.
In 2020, Mammoth Solar submitted an application for approval of a 4,511-acre commercial solar energy farm in Pulaski County. Pulaski County’s Unified Development Ordinance (“UDO”) required a special exception for construction and operation of solar energy systems (“SES”). The UDO specified a detailed list of information that all SES applications “shall include”, together with a list of additional information that any commercial SES applications “shall include.” Among the information and materials the UDO stipulated to be submitted with a commercial SES application were: a detailed site layout plan, including a fire protection plan for the construction and operation of the facility; a topographic map; a communications study; certification of compliance with utility notification requirements; and evidence of compliance with storm drainage, erosion, and sediment control regulations. Mammoth Solar’s application admittedly did not include the foregoing items, but Mammoth Solar explained that the information would be submitted later, during the design phase of its project and prior to obtaining a building permit. The Board of Zoning Appeals proceeded to hold a public hearing on Mammoth Solar’s application, at the conclusion of which, the BZA approved the special exception.
Several remonstrators appealed the BZA’s approval of Mammoth Solar’s application to the Pulaski Superior Court. The trial court concluded that the BZA did not have authority to hold a public hearing or approve Mammoth Solar’s special exception because the application did not include all of the information specified in the UDO. The trial court thus vacated the decision and remanded the matter back to the BZA.
On appeal, the Indiana Court of Appeals affirmed the trial court’s decision. Mammoth Solar v. Ehrlich, 196 N.E.3d 221 (Ind. Ct. App. 2022). The Court of Appeals noted that the interpretation of an ordinance is a question of law and that an agency’s incorrect interpretation of an ordinance is entitled to no weight. The Court further stated that where an agency misconstrues an ordinance, there is no reasonable basis for the agency’s action, and therefore, the action is arbitrary and capricious and must be reversed by the reviewing court. The Court reasoned that where an ordinance uses the word “shall,” the requirement is viewed as mandatory unless it is clear from the context or purpose of the ordinance that a different meaning was intended. Here, the Court of Appeals found that the UDO unambiguously stated that the application “shall include” the specified information and left the BZA no room for discretion to allow Mammoth Solar’s application to proceed without all of the information required in the UDO. The Court found unpersuasive Mammoth Solar’s argument that because other provisions of the UDO gave an administrator authority to determine the form and content of development applications and update application requirements, the BZA had latitude to permit submission of some information at a later time. The Court found that any such authority did not allow modification of application requirements after that application has been submitted. The Court therefore concluded that the BZA had no authority approve Mammoth Solar’s special exception because the application submitted was incomplete. As a result, the Court held that the BZA’s approval of the application was arbitrary and capricious, and was properly reversed.