As of July 1, 2020, certain changes went into effect regarding Indiana’s Probate and Trust statutes pursuant to Senate Enrolled Act 50.  Once such change was Indiana Code § 29-1-7-3 regarding the devolution of real property of a decedent. This statute may provide an avenue for distributees to transfer real property without opening a formal Probate Estate.

Under Indiana Code § 29-1-7-23, when a person dies, the person’s real property passes to persons whom it is devised to by their will, or in the absence of a will, to the person’s heirs at law.  This passing of real property is, however, subject to the possession of the property by a personal representative if a formal Probate Estate is opened, the election of the surviving spouse and the expenses of administration and the payment of other claims and allowances.

Under the changes to Indiana Code § 29-1-7-23, a person can sign and record a devolution affidavit to establish prima facie evidence of the passage of title to the real property.  Under the changes to the statute, that affidavit may contain the following information: (i) the decedent’s name and date of birth; (ii) a statement of the affiant’s relationship to the decedent; (iii) a description of how the decedent acquired an ownership or leasehold interest in the real property including deeds or other instruments recorded in the Office of the Recorder; (iv) a legal description of the real property as it appears in deeds or other instruments; (v) the names of all distributees known to the affiant, (vi) an explanation of how each interest in the property was acquired; and (vii) how any fractional interest to each distributee was calculated and how interests in the real property will be apportioned.  The devolution affidavit can then be presented to the county auditor where the real property is located, and then is also recorded with the Office of the Recorder in the same county.

A devolution affidavit, properly filed and recorded in good faith, may be relied upon as prima facie evidence of transfer of the decedent’s title to the real property interest, if the affidavit is filed and at least seven (7) months have elapsed since the decedents death, the clerk of a court has not issued letters testamentary or letters of administration to a court appointed personal representative within the time limits to open a formal Probate Estate and the court has not issued an order otherwise preventing this chapter from applying to the real property.

Several of the changes to the statute that took effect on July 1, 2020, were changes that clarified information in the statute and the affidavit procedure.  There were several changes that are worth noting.  First, the addition to the word “may” regarding the information that is contained in the devolution affidavit was a significant change. Whereas, the prior statute required certain information to be included in the devolution affidavit, the changes ensure that the affidavit can still be filed absent some of the information that used to be mandatory.

Additionally, one of the big changes to the statute that is of importance to note is that the devolution affidavit no longer requires a statement in the affidavit that seven (7) months has elapsed since the decedent’s death.  This means that a devolution affidavit could be filed prior to seven (7) months from the decedent’s death.  In light of the statute still containing the provision for reliance on the devolution affidavit after seven (7) months from the decedent’s death, it still may be beneficial to wait until after seven (7) months to file and record the affidavit.

There is no one-size-fits-all approach to a formal Probate Estate or to probate substitutes such as a devolution affidavit.  Each individual’s situation is different and unique.  If you are interested in learning whether a devolution affidavit may be used in lieu of a formal Probate Estate, please contact Benjamin T. Ballou or Carl J. Hall at Hodges and Davis for more information.

 

This article provides a brief summary of the changes to Indiana Code § 29-1-7-23 regarding devolution affidavits. The information contained herein does not constitute legal advice, nor does it establish an attorney/client relationship.

 

Hodges and Davis, P.C. – August 2020

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