Shawn D. Cox is serving a two-year term as Treasurer of the Lake County Bar Association. Shawn previously served as President and Secretary of the LCBA.
Shawn D. Cox was elected the Secretary of Indiana State Bar Association’s Bankruptcy & Creditors’ Rights Section Council.
On December 7, 2022, Attorney Bonnie C. Coleman attended the Indiana Hospital Association Legal Forum.
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 HEA 1208 and the changes made regarding service of notice in probate estates, which became effective July 1, 2022.
As we transitioned from filing pleadings by mail or in-person to electronic filing, the role of the clerk of the court regarding service of notices in probate estates was in flux. In HEA 1208, the legislature clarifies the clerk’s role.
I.C. 29-1-1-12 sets forth the process of serving notice on interested persons in a probate estate. Subsection (c) of the statute previously stated that “the personal representative or party charged with the duty of giving notice shall furnish the clerk with sufficient copies of the notice, prepared for mailing, and the clerk shall mail notice.” This provision is now repealed by HEA 1208.
I.C. 29-1-1-16 requires proof of service of notice to be filed prior to a hearing. The reference to “the clerk or other” has been deleted from the statute regarding service made by the clerk, since the clerk is no longer responsible for serving notice.
Elections to take against the will of a decedent by a surviving spouse must be filed with the clerk of the court pursuant to I.C. 29-1-3-3. Subsection (c) has been revised to require the clerk to serve a copy of the election on the personal representative of the estate and the “personal representative’s attorney of record through the E-filing System of the Indiana Courts or by first class postage prepaid.”
I.C. 29-1-7-7(a) no longer includes the language “the clerk of the court shall publish” notice of the estate administration. That language has been deleted, and new language has been included to simply state that notice “shall be published.” Also, notice can be served “through the E-Filing System of the Indiana Courts or by first class posted prepaid mail on each heir, devisee, legatee, and known creditor whose name and address is set forth in the petition for probate or letters, except as otherwise ordered by the court.” The sentence “The personal representative shall furnish sufficient copies of the notice, prepared for mailing, and the clerk of the court shall mail the notice upon the issuance of letters” has been deleted. In other words, the attorneys must serve notice, and it is recommended that an Affidavit of Service or Certificate of Mailing Notice be filed with the court to confirm service has been made.
HEA 1208 clarifies notice and objection deadlines related to final accounts in supervised estates. Previously, there were conflicts in the statutes related to the deadline for an interested person to file written objections to a final account (i.e., I.C. 29-1-16-6 and 29-1-16-7).
Upon the filing of a final account, hearing and notice must occur pursuant to I.C. 29-1-16-6. The court or clerk must set a date by which all objections to the final account and petition for distribution must be filed. Now, the date must be “at least fourteen (14) days before the hearing date” and the personal representative or his/her agent must serve notice upon all persons “who are entitled to share in the final distribution of the estate, and whose names and addresses are known to the personal representative or may by reasonable diligence be ascertained as set forth in the personal representative’s petition for distribution.” The notice must state that the final report will be acted upon by the court on the date set unless written objections are presented to the court “at least fourteen (14) days before the hearing date.” Previously, the personal representative had to provide this information to the clerk, together with sufficient copies of said notice prepared for mailing. This requirement has been deleted. Now, the personal representative or the personal representative’s agent shall send a copy of the notice “through the E-filing system of the Indiana Courts or by first class postage prepaid mail to each of the interested parties at least thirty (30) days prior to the hearing date.” If notice is served by publication, the “fourteen (14) day” written objection deadline must be included in the notice that is published in the newspaper.
I.C. 29-1-16-7 previously stated that any interested person may file written objections to any item or omission in the account “at any time prior to the hearing on an account of a personal representative.” That language has been deleted and replaced with “As stated in section 6 of this chapter….”
Electronic filing has reduced the role of the clerk of the court regarding service of notice in probate estates. The probate code is now catching up to clarify the responsibilities of the practitioner vs. the responsibilities of the clerk. It is now your responsibility to ensure proper notice is served. While the clerk will affix a stamp and date to the notices for the practitioner and post the notices to the docket, you will not be “served” via Odyssey with these notices. Rather, you and your staff will need to be proactive and download/copy the notices so that you can serve them on interested parties. Also, it is imperative that you file an Affidavit of Service or Certificate of Mailing Notice to ensure the court’s record is clear that all interested parties have been served to avoid any issues down the road. When in doubt, take action to serve everyone that could be considered an interested party and file an Affidavit of Service or Certificate of Mailing Notice to protect yourself and your personal representative from “lack of service” claims made by beneficiaries, creditors and other interested parties.
Please note that this post is only a brief summary of HEA 1208 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.
The guardianship code incorporates several statutes found in the probate code. One must be mindful of these statutes when handling guardianships.
IC 29-3-2-6 Application of decedents’ estates law to guardianships and protected persons
Sec. 6. (a) The applicable rules regarding decedents’ estates in IC 29-1-7 through IC 29-1-17 apply to guardianships and protective proceedings under IC 29-3-4 when consistent with this article and IC 29-1-19.
(b) IC 29-1-1-6 through IC 29-1-1-7, IC 29-1-1-9 through IC 29-1-1-10, IC 29-1-1-12 through IC 29-1-1-14, IC 29-1-1-16 through IC 29-1-1-18, and IC 29-1-1-20 through IC 29-1-1-24 apply to guardianships under this article and IC 29-1-19.
(c) This article extends to persons specifically provided for under IC 29-1-19. The provisions of this article are cumulative to the provisions of IC 29-1-19. A conflict arising between this article and IC 29-1-19 is resolved by giving effect to the law stated in IC 29-1-19 in cases to which it applies.
(d) The provisions of IC 29-1-15 concerning the sale of decedents’ property apply to the sale of protected persons’ property.
(e) The provisions of IC 29-1-16 concerning accounting in decedents’ estates apply to accounting in protected persons’ estates that are consistent with this article.
(f) The provisions of IC 29-1-14-2, IC 29-1-14-10, IC 29-1-14-11, IC 29-1-14-12, IC 29-1-14-13, and IC 29-1-14-17 concerning claims against decedents’ estates apply to claims against protected persons’ estates.
As added by P.L.264-1989, SEC.3