Bonnie C. Coleman | Hodges & Davis Law Firm Northwest Indiana

On November 5, 2021, the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule become effective.  In essence, the rule imposes a mandatory COVID-19 vaccination requirement applicable to all health care providers and suppliers that receive reimbursement under the Medicare and Medicaid programs and are regulated under CMS health and safety regulations.  If CMS does not have regulatory authority over a facility, e.g., assisted living facilities or group homes, the Regulation does not apply.

The Regulation applies to eligible staff of the covered health care providers and suppliers, which includes current and new staff who provide care, treatment or any other services for the facility and/or its patients.  This includes facility employees, licensed practitioners, students, trainees, and volunteers, as well as individuals who provide care, treatment and/or other services for the facility or its patients under contracts or other arrangements.  It does not apply to individuals who provide 100% of their services remotely.

The Regulation provides for two phases and the covered entities must establish a process or policy to fulfill the vaccination requirements during the two phases.  Within 30 days following the Regulation’s effective date, Phase 1 must be completed.  During Phase 1, all covered individuals must have received, at a minimum, the first dose of a primary series or a single dose (for example, Johnson & Johnson) prior to being eligible to provide care, treatment or any other services.  For Phase 2, the series must be completed, for example, the second Pfizer or Modern dose must have been received.  CMS does not require 14 days from the last dose to meet the Phase 2 requirement, only that the dose be administered.

The vaccines that count toward the requirement are those that have been licensed or authorized for emergency use by the FDA.  Additionally, vaccine’s identified by WHO (World Health Organization) and not yet approved for use by the FDA, emergency or otherwise, are also acceptable.  Currently the vaccines licensed or approved for emergency use by the FDA for include Pfizer, Moderna and Johnson & Johnson.  At this time, CMS has indicated it does not require a booster shot to be deemed fully vaccinated, but does suggest that if the booster becomes required as part of a series, as opposed to recommended, the requirement would change under the current form of the Regulation. Since the booster is delayed by 6 months, it is expected that further guidance would be provided in conjunction with making the booster a requirement.

There are exemptions that must be made available for staff with recognized medical conditions for which vaccines are contraindicated, or religious beliefs.  These exemptions should be contained within the policies and procedures and should be aligned with and administered in accordance with federal law.  Any individual seeking an exemption should consult with the provider or supplier for whom the individual works or provides services.  The Regulation does not mandate testing of those with an exemption, but instead anticipates that the provider/supplier determine under federal law what requirements/accommodations should be contained within its policy.

Non-compliance will be enforced against the provider or supplier.  Healthcare providers are also instructed by the CMS that this regulation has primary application over other potentially applicable regulations.  This means that all applicable regulations apply, however, if there is a conflict, then the conflicting provision of this regulation will apply to healthcare providers and suppliers as opposed to conflicting provisions of other regulations.

Please note that this post is only a brief summary of the CMS Regulation and does not constitute legal advice nor does it establish an attorney/client relationship.  Should you have specific questions regarding the above, please contact Bonnie C. Coleman at Hodges and Davis, P.C.

 

 

Hodges & Davis-November 2021

Steven J. Scott | Hodges & Davis Law Firm Northwest Indiana

It is something that no one wants to receive and likely doesn’t want to think about; however, if you receive notice from the EEOC that an employee or former employee has filed for a Charge of Discrimination, it is not a notice that can be ignored.

  • Pre-Charge.

If an employer has an inkling or inclination that an employee may file a Charge of Discrimination, the employer should take immediate steps to insure that documents are properly maintained, employment issues are properly documented including such items as initial interviews with co-workers, supervisors and potentially decision makers at the management level.

  • Charge Received.

Once the EEOC Charge is received.  A careful review of the Charge and accompanying Notice regarding the time frame to respond to the Charge is necessary.  At this point it is likely a good idea to consult with an attorney regarding the next steps to take with the EEOC.  Even if the employer believes that the allegations are unfounded, the Charge should be taken seriously and a response, likely a Position Statement, should be completed, including documents that provide support for the response within the time limits set forth by the EEOC.

  • EEOC Investigation.

The EEOC investigation process can be similar to discovery in a litigated matter.  The EEOC has authority to conduct written discovery regarding the EEOC Charge and any items the EEOC deems relevant.  Any requests for information must be responded to in a timely fashion.  If additional time is needed to respond to said request, that additional time should be requested promptly with the EEOC.  Typically, the EEOC will provide additional time to respond to requests as long as reasonable.

  • Conclusion

Upon receipt of a Charge of Discrimination, an employer should gather relevant documents, provide a complete position statement and promptly respond to any requests for information from the EEOC.  Failure to do so can negatively impact the manner in which the Charge against the employer is resolved.

 

This article constitutes a brief summary regarding EEOC Charges of Discrimination.  The information provided does not constitute legal advice, nor does it establish an attorney/client relationship.  If you have any questions regarding the contents of this article, please contact Hodges and Davis attorney Steven J. Scott.

 

Hodges & Davis- October 2021

Benjamin T. Ballou | Hodges & Davis Law Firm Northwest Indiana

The Indiana legislature was quite busy this past session regarding probate law (HEA 1252, HEA 1255 and SEA 276) and health law (SEA 204).  This update will focus on HEA 1252, which became effective July 1, 2021.

A.    Technical corrections were made to I.C. § 29-1-7-15.1 to change the references in statute from “estate” to “property” (i.e., “real property” instead of “real estate”).

B.    Changes were made to I.C. § 29-1-7-15.2 regarding the protection afforded to real estate and proceeds of the sale of such real estate.  Generally, I.C. § 29-1-7-15.1(b) provides that an executor/administrator cannot sell real property to pay any debt or ligation of the decedent which is not a lien of record in the county where the property is located, or pay any costs of administration, unless a petition for administration is filed not later than 5 months after death and the clerk issues letters not later than 7 months after death.  Per the amendments to I.C. § 29-1-7-15.2, if the personal representative of the estate sells the real property to satisfy a lien of record in which the real estate is located, pay costs of administration, or use the proceeds for any other payment or distribution approved by the written consent of a majority in interest of the estate distributees (per I.C. §29-1-10-21), the proceeds of such sale retain the same protection that I.C. § 29-1-7-15.1(b) provides regarding payment of any debt or obligation not described above.

C.     A new statute was added to the probate code regarding a “tenant’s representative”.  I.C. § 29-1-8-11 sets forth the process by which an individual appointed as a tenant’s representative under I.C. § 32-31-1-23 (established under this same legislation and discussed below) can exercise authority on behalf of a deceased tenant.  The statute allows the tenant representative to collect all or part of the deceased tenant’s security deposit; collect the deceased tenant’s personal property from the residence; distribute any portion of the security deposit to the deceased tenant’s distributees; distribute the deceased tenant’s tangible personal property to the deceased tenant’s distributees; and execute a small estate affidavit pursuant to I.C.§ 29-1-8 on behalf of the deceased tenant’s distributees and present it to the landlord to obtain the security deposit and tangible personal property.

If an estate is opened, and the deceased tenant’s representative is provided with letters testamentary or letters of administration, the tangible personal property must be delivered to the named personal representative of the estate.

The tenant’s representative is required to keep complete records of all transactions for 9 months after death, or 3 months after the records are delivered to the personal representative of the estate, whichever occurs first.

A written accounting must be rendered by the deceased tenant’s representative pursuant to a court order (which can be entered at any time) or written demand received from a child of the deceased tenant, the personal representative of the deceased tenant’s estate or an heir/legatee of the deceased tenant (which must be requested within 9 months of death).  The accounting must be delivered to the court, the personal representative of the deceased tenant’s estate, an heir/legatee, or a child of the deceased tenant.  The accounting must be delivered within 60 days.  Only 1 accounting is required in a 12-month period.  If the deceased tenant’s representative fails to deliver an accounting, the court or the person demanding the accounting may initiate a mandamus action to compel the provision of an accounting.  If the court finds that the deceased tenant’s representative failed to render an accounting without just cause, attorney’s fees and court costs may be awarded.

A deceased tenant’s representative can proactively request a court to review and settle his/her account.  The petition must be filed with the court exercising probate jurisdiction in the county where the deceased tenant resided, and the filing fee is a legitimate expense of the deceased tenant’s estate.  Trust code provisions governing a trustee’s petition to settle and allow an account govern this same type of process (see I.C. § 30-4-5-14(b), (c), (d) and I.C. § 30-4-5-15).  The petition must be served on the personal representative of the deceased tenant’s estate, any person beneficially interested in the estate, the deceased tenant’s heirs at law, the named personal representative in the deceased tenant’s Last Will and Testament that was probated without administration (i.e., “spread of record”) and the persons or entities listed therein as beneficiaries, and any other person the court directs.  If the court reviews and approves the account, and proper notice is provided, the deceased tenant’s representative is discharged from liability and is binding upon all interested persons (except in cases of fraud, misrepresentation, inadequate disclosure or failure to provide proper notice).

D.     Changes were also made to I.C. § 29-3-12-1, which governs termination of a guardianship.  I.C. § 29-3-12(e) sets forth the specific powers a guardian may exercise after the protected person’s death.  If the court approves the payment of expenses and obligations under this statute, then the guardian shall pay certain expenses and obligations in amounts approved by the court in the decreasing order of priority:

    • final administration expenses of the guardianship approved by the court;
    • reasonable expenses for funeral, tombstone, monument, or other marker and disposition of the bodily remains (subject to the limitations provided in I.C. § 29-1-14-9(a)(2));
    • statutory allowances to the protected person’s surviving spouse or surviving child under I.C. §29-1-4-1;
    • debts disclosed to the court and which could be filed and allowed as claims under I.C. § 29-1-14, having the priority and preference established under I.C. §29-1-14-9(a)(4);
    • reasonable expenses of last illness disclosed to the court and which could be filed and allowed as claims under I.C. § 29-1-14, having the priority and preference established under I.C. §29-1-14-9(a)(5);
    • debts disclosed to the court and which could be filed and allowed as claims under I.C. § 29-1-14, having the priority and preference established under I.C. §29-1-14-9(a)(6);
    • any other obligations disclosed to the court and which could be filed and allowed as claims under I.C. § 29-1-14, having the priority and preference established under I.C. §29-1-14-9(a)(7).

E.     The definition of “Principal” under the Power of Attorney Act found at I.C. § 30-5-2-18(1)(A) now includes an individual who is at least 18, emancipated, or currently serving in the U.S. military.

F.     As referenced above, a new statutory scheme for a deceased or incapacitated tenant was implemented.  I.C. § 32-31-1-23 imposes duties on the landlord who has knowledge of a deceased tenant who was the sole occupant of the premises.  Specifically, the landlord must do the following:

    • notify the tenant’s representative of the tenant’s death;
    • provide access to the premises for the tenant’s representative to remove personal property therefrom;
    • deliver the security deposit and unearned rent to the tenant’s representative (the landlord can required the tenant representative to prepare and sign an inventory related to any tangible personal property removed from the premises).

If a landlord believes a sole occupant tenant is incapacitated and absent from the premises, the landlord must notify the tenant’s representative of such incapacity.  The landlord must also give the tenant’s representative access to the premises to remove personal property.  Again, the landlord can required the tenant representative to prepare and sign an inventory related to any tangible personal property removed from the premises.  The landlord must also deliver the security deposit and unearned rent to the tenant’s representative.

This new statute also sets forth who can accept an appointment and serve as a tenant’s representative, in the following order of priority:

    1.      A person designated by the tenant in a written document delivered to the landlord.
    2.      A person designated, in writing, by the tenant in a written lease between the tenant and the landlord.
    3.      An attorney in fact named by the tenant in a power of attorney during the tenant’s lifetime.
    4.      A temporary guardian or guardian of the person of a tenant.
    5.      A tenant’s heir.
    6.      A person selected and appointed by a probate court upon a petition by any interested person under this section.

If a dispute exists between two (2) or more persons claiming to be a tenant’s representative, the probate court’s decision controls after a hearing held upon notice to the interested persons.  To accept an appointment, the individual must providing written notice to the tenant’s landlord of the tenant representative’s acceptance of appointment.  If the tenant is appointed by the probate court, acceptance is achieved by complying with the conditions stated in the probate court’s order.

How long does the authority of the tenant’s representative last?  Once a deceased tenant’s heir, a deceased tenant’s attorney in fact, a temporary guardian, or a guardian of the person knows that a personal representative has been appointed for the deceased tenant’s estate; a tenant’s attorney in fact is acting on the living tenant’s behalf; or, a guardian has been appointed for the living incapacitated tenant’s property, then the authority terminates.

What liability does a landlord have?  If the landlord complies with these statutory requirements, there is no liability to the tenant, if the tenant is living; to the tenant’s estate, if the tenant is deceased; or, to any other person that has a claim or interest in the personal property removed from the premises, unearned rent, or security deposit.  However, a landlord that willfully violates subsection (a) or (b) is liable to the tenant, if the tenant is living; or, to the tenant’s estate, if the tenant is deceased, for actual damages.

In addition to the rights provided in this section, the tenant’s representative has the incapacitated or deceased tenant’s rights and responsibilities under I.C. § 32-31-4 (which addresses moving and storage of a tenant’s property).

 

 

Please note that this post is only a brief summary of HEA 1252 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.

 

Hodges & Davis, P.C.-September 2021

Under the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 and the American Rescue Plan Act of 2021, the Federal Emergency Management Agency (FEMA) is authorized to provide financial assistance for COVID-19 related funeral expenses incurred after January 20, 2020.  The criteria to be eligible for assistance is as follows: (1) the death must have occurred in the United States; (2) the death certificate must indicate the death was attributable to COVID-19; (3) the applicant must be a U.S. citizen, non-citizen national, or qualified alien who incurred funeral expenses after January 20, 2020.  There is no requirement for the deceased person to have been a United States citizen, non-citizen national, or qualified alien.

To expedite a claim for assistance you are encouraged to keep and gather documentation supporting your claim, including: (1) an official death certificate that attributes the death directly to COVID-19 and shows the death occurred in the United States; (2) documents showing the amount spent on funeral expenses for the decedent; and, (3) proof of any funds received from other sources including burial or funeral insurance, governmental agencies or other voluntary agencies. Those who believe that they meet the above criteria, are encouraged to contact FEMA to apply for assistance.

 

Hodges & Davis, P.C.- April 2021

Blake Hartman (“Hartman”) was a former officer and director of BigInch Fabricators & Construction Holding Company, Inc. (the “Corporation”), a closely held corporation.  He is also a minority shareholder of the Corporation.

In 2006, Hartman and the other shareholders of the Corporation agreed to be bound by a contract which contained a buyback clause requiring the Corporation to repurchase a shareholder’s interest in the Corporation if the Corporation involuntarily terminates the shareholder as an officer or director.  The clause further provided that the Corporation must pay the former officer or director the “appraised market value” of the shares as determined by a third-party valuation.

In 2018, Hartman was terminated without cause, triggering this contractual clause requiring the Corporation to purchase Hartman’s shares in the Corporation.  The Corporation hired a third-party appraisal company to appraise Hartman’s interest and applying a fair market value standard, the appraiser discounted the shares for their lack of marketability and Hartman’s lack of control.

Hartman filed suit against the Corporation, asserting that the discounts are inapplicable because the shareholder agreement didn’t contemplate a fair market value standard.  The trial court found in the Corporation’s favor, finding that the term “appraised” merely states how to determine “market value” and that “market value” and “fair market value” are synonymous terms, which are consistent with the appraiser’s approach.  The Indiana Court of Appeals disagreed, concluding that the discounts could not apply to any closed-market sale.

The Indiana Supreme Court disagreed and held that the discounts used by the appraiser did apply in this case.  In Indiana, parties are free to enter into contracts and the courts, when construing a contract’s terms, give the plain and ordinary meaning to the language used.  The Supreme Court stated that prior caselaw prohibiting the use of discounts in determining market value did not apply where the terms of the contract expressly called for “appraised market value.”  The Court held that the terms “appraised market value” and “fair market value” are synonymous terms which contemplate an appraisal value of the terminated shareholder’s individual interest in the company—not the value of the company as a whole.  As such, the shareholders agreed to a valuation of their shares as if they were sold on the open market.  Such a valuation can include discounts for lack of marketability and lack of controlling interest in the Corporation.  Therefore, the Indiana Supreme Court held that those discounts could be applied to the buyout of Hartman’s shares by the Corporation.

Should you have specific questions regarding the above, please contact Carl J. Hall at Hodges and Davis, P.C.

 

Hodges & Davis, P.C.- March 2021

Benjamin T. Ballou | Hodges & Davis Law Firm Northwest Indiana

Paul Martin invested $50,000 in 1998 with Rydex Series Trust.  The account application listed Martin as owner and his daughter, Lia J. Lindsey, as joint owner and provided that joint accounts will be registered as “joint tenants with rights of survivorship” unless otherwise provided.  No funds were contributed to the account by Lia. Later, in 2011-12, the account was retitled as a Guggenheim Investments account.  At all times, the Guggenheim account was owned by Martin and Lia as joint tenants with rights of survivorship. The account statements reflected this ownership as well.

On July 6, 2018, Martin’s wife (Julianne Solomon) initiated a call to Guggenheim and requested that all funds in the Guggenheim account be withdrawn and the account closed.  Solomon “did most of the talking” but Martin did advise during the call that he agreed with the request and authorized the representative to speak to Solomon.  Solomon and Martin were provided with a confirmation number to confirm the redemption occurred.

Unfortunately, on July 9, 2018, Martin died.  On that same day, Guggenheim issued a check to “Paul A. Martin or Lia J. Lindsey” in the amount of $351,878.68. Guggenheim overnighted the check to his address per Martin’s request during the July 6th phone call.

On August 20, 2018, Solomon endorsed and deposited the check into an estate checking account in her capacity as personal representative of Martin’s estate.  Lia contacted Guggenheim on October 8, 2018 and first learned about Martin’s redemption request and the check.  Thereafter, Lia filed a Verified Complaint to Recover Property Transfer against Solomon in her individual capacity and in her capacity as personal representative.

Lia filed a motion for summary judgment with the trial court, claiming that as the surviving party to the joint account, the proceeds belong to her under Indiana law.  Solomon filed a motion for summary judgment as well, arguing that Lia deposited no funds in the account and withdrew no funds from the account.  Solomon also argued that Martin’s intentions were to liquidate and close the joint account and use the funds to acquire a new marital residence that would be more comfortable for him because he was in failing health.  Lia submitted as evidence a note written by Martin stating “Keep in mind you have access to this $ anytime you want it…Love you, Me.”

After hearing the motions for summary judgment, the trial court entered an order granting summary judgment in Lia’s favor and directed Solomon to distribute the proceeds of the account ($351,878.68) to Lia.  The trial court held that Martin failed to follow the statutory procedure to close the joint account and, therefore, at his death, Martin had cash in a joint account which belonged to Lia as the surviving joint owner.  Solomon appealed the trial court’s order to the Indiana Court of Appeals.

Indiana law [I.C. § 32-17-11-18(a)] provides that sums remaining on deposit at the death of a party (Martin) to a joint account belong to the surviving party (Lia)…as against the estate of the decedent (Martin) unless there is clear and convincing evidence of a different intention at the time the account is created.  This creates a presumption that a survivor to a joint account (Lia) is the intended recipient of the account proceeds.  Indiana law further provides that in order to defeat the survivorship presumption, a challenger (Solomon) must present clear and convincing evidence that at the time of account’s creation, the decedent (Martin) did not intend the surviving joint holder (Lia) to receive the proceeds or that the original intent of the decedent (Martin) for the joint account holder to receive the proceeds changed before death and was communicated in writing to the financial institution.

Pointing to a prior case which had similar facts, the Court of Appeals held that a phone call could not serve to terminate the joint account.  Also, the Court pointed to I.C. § 32-17-11-9, which provides that the form of ownership of a joint account may only be altered by a signed, written order given to the financial institution during the party’s lifetime.  Because Martin did not take the appropriate steps to change the form of the account when he withdrew the funds, the Court held that the rights of survivorship are determined by the form of the account at the death of a party.  Even though Martin withdrew all of the funds prior to death, this alone did not overcome the presumption that Lia was the intended recipient of the proceeds in the account as the surviving joint owner.  The Court found that there was no dispute that Martin failed to communicate in writing to Guggenheim that his intent had changed.  Therefore, when Martin died, the form of the account was a joint account with rights of survivorship in Lia per I.C. § 32-17-11-18. The Court of Appeals ruled in Lia’s favor and affirmed the trial court’s decision.

This case is a reminder that Indiana’s laws governing joint accounts should be reviewed and precisely followed in order to accomplish severing a joint account during lifetime.  Otherwise, the wishes and goals of the client may not be accomplished and lead to unintended results.

 

Should you have specific questions regarding the above, please contact Benjamin T. Ballou at Hodges and Davis, P.C.

 

Hodges & Davis, P.C.- March 2021

Gregory A. Sobkowski | Hodges & Davis Law Firm Northwest Indiana

The Indiana Tort Claims Act (“ITCA”) governs tort claims against local governmental entities. The ITCA requires that notice of a claim must be provided to the governing body of the governmental entity, and to the Indiana Political Subdivision Risk Management Commission within 180 days of the complained injury.

Strict compliance with the notice requirements is not mandatory. Instead, a plaintiff need only substantially comply with the ITCA’s requirements. Failure to substantially comply typically results in the claim being barred; but the claim may still proceed if the governmental entity or its agent induces the plaintiff to believe that compliance with the notice requirement is unnecessary.

The Indiana Court of Appeals recently addressed that issue in Madison Consolidated Schools v. Trisha Thurston. In that case, a student was riding a school bus when it struck a guardrail, causing injuries to the student. The student’s mother and the school’s insurer agreed to postpone discussion of settlement until medical treatment had been completed. The insurer indicated that a lawsuit would need to be filed within a certain time, but failed to mention the formal notice requirements of the ITCA. The mother failed to provide formal notice, and filed suit less than two years thereafter. While the school argued that the claim was time-barred, the mother argued that notice was unnecessary since the insurer had recommended waiting for medical care to conclude before any discussion of settlement and never informed her that a tort claim notice was required.

The Court of Appeals determined that cases may proceed under the ITCA under the doctrine of “equitable estoppel”. A plaintiff wishing to base a claim on equitable estoppel must show: (1) lack of actual and constructive knowledge of the facts in question; (2) reliance upon the conduct of the opposing party; and (3) action based on that conduct that changed the plaintiff’s position. While government entities are not generally subject to claims based on equitable estoppel, the Court concluded that those claims do have merit when it is clear that the agents of the governmental entity made representations which induced the Plaintiff to reasonably believe that formal notice was not required. The Court in the Thurston case found that there was evidence of multiple communications between the school’s insurer and the student’s mother and that the notice requirement was never raised or discussed. The Court, therefore, found that whether the student’s mother was excused from complying with the notice requirements of the ITCA based on the theory of equitable estoppel was a question to be decided by the jury at trial.

In light of this case, government entities and their agents must be careful when discussing potential claims with would-be plaintiffs.

 

This article constitutes a brief summary of the notice requirement under the ITCA. The information provided does not constitute legal advice, nor does it establish an attorney/client relationship. If you have any questions regarding the contents of this article, please contact the attorneys at Hodges and Davis.

 

Hodges & Davis- August 2020

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

Benjamin T. Ballou | Hodges & Davis Law Firm Northwest Indiana

In 1989, the Indiana Court of Appeals held that a lease for a safe deposit box is sufficient to establish a right of survivorship, if the language of the agreement specifically provides for that arrangement.

In Matter of Estate of Langley, two women, Langley and Highman, rented a safe deposit box following nearly 40 years of friendship.  In renting the box, Langley and Highman signed a contract that provided: “all right of access thereto shall belong exclusively to the survivor or survivors.”  Following Langley’s death, the personal representative of Langley’s Estate obtained a restraining order against Highman to prevent her from accessing the safe deposit box and asserted that the box was the property of the Estate.

This case thus presented a single issue: Whether a lease contract that specifically provided for a right of survivorship between Highman and Langley was sufficient to create such a right.

The Court of Appeals held that the lease was sufficient to create a right of survivorship.

The Court adopted a “contract” theory regarding the lease. To that end, the Court was careful to distinguish between agreements that specifically indicate an intention to create rights of survivorship, and those that do not.  Since the lease agreement contained such specific language, and Highman and Langley signed the document, the Court held that the contents of the safe deposit box passed to Highman upon Langley’s death.

By contrast, the Court of Appeals has also concluded that gun collections are not “household goods”, and therefore may not be subject to survivorship rights under state law.  In In re Estate of Roberts, a couple had amassed a sizeable gun collection of nearly 300 items. Both spouses died, but the Court had to decide whether the gun collection passed to the wife’s estate upon the prior death of her husband.

Under Indiana Law, “household goods” pass to the surviving spouse upon the others’ death.  “Household goods” are those items with which a home is equipped which are necessary for a person to live in a “convenient and comfortable manner.”  Since the gun collection was so large, not used for protection, and stored out of sight in the basement, the Court concluded that the collection was not imbued with a right of survivorship.

The key takeaway here is that people who wish to create a right of survivorship in the contents of a safe deposit box must ensure that the bank’s safe deposit contract language specifically indicates that intention.  In other words, agreements that merely allow for a surviving co-tenant to access the contents of the safe deposit box are insufficient to create survivorship rights.  By contrast, a large gun collection may not be subject to rights of survivorship unless the guns are demonstrably used for self-defense, in which case they may constitute “household goods”, and pass to a surviving spouse.

 

This article constitutes a brief summary regarding rights of survivorship.  The information provided does not constitute legal advice, nor does it establish an attorney/client relationship.  If you have any questions regarding the contents of this article, please contact Hodges and Davis attorneys Benjamin T. Ballou or Carl J. Hall.

 

Hodges & Davis- July 2020

Gregory A. Sobkowski | Hodges & Davis Law Firm Northwest Indiana

On March 18, the Indiana General Assembly passed Senate Enrolled Act No. 249.  That Act added I.C. 35-31.5-2-235.2 which addresses the exploitation of dependent and endangered adults, and the penalties that attach thereto.

The Enrolled Act prohibits a “person in a position of trust” from engaging in self-dealing with, or exploitation of, the property of an endangered adult or a dependent person.  The Act defines a “person in a position of trust” as one who has or has had the care of an endangered adult or a dependent, whether that care was assumed voluntarily or pursuant to a legal obligation.  A person may also fall under this definition if they have had a professional relationship with an endangered adult or a dependent.

A person engages in “self-dealing” if they use the property of another person to gain a benefit that is “grossly disproportionate” to the benefits received by the dependent or endangered adult.  Further, a person engages in “exploitation” if they exert control over an endangered adult or dependent’s personal property for their own personal gain, and not for the profit of the endangered person.

If a person engages in self-dealing or exploitation, that offense constitutes a Class A misdemeanor.  The offense elevates to a Level 6 felony if the person has a prior unrelated conviction.

 

This article provides a brief summary of Senate Enrolled Act No. 249. The information contained herein does not constitute legal advice, nor does it establish an attorney/client relationship. If you have any questions with regard to the new law, please contact the attorneys at Hodges and Davis.

Hodges & Davis- June 2020