Indiana State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

  • Indiana Code Annotated
  • Probate jurisdiction rests with the Circuit or Superior Court; Probate Court in St. Joseph and Vigo Counties
  • Probate laws are primarily under Title 29

Minimum age requirement to:

  • Distribute property by will: 18, but if in the Armed Forces or Merchant Marines then no minimum age (Section 29-1-5-1)
  • Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes:

  • Estate tax: Equal to federal credit for state death taxes minus amount paid to state inheritance tax (Section 6-4.1-5-1 and 6-4.1-11-2)
  • State gift tax:Inheritance tax: Up to 20% (Section 6-4.1-5-1 and 6-4.1-11-2)
    • No state gift tax (Section 6-4.1-5-1 and 6-4.1-11-2)
    • Anatomical Gift Act (Section 29-2-16-1)
  • Inheritance tax: Up to 20% (Section 6-4.1-5-1 and 6-4.1-11-2)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 29-1-2-1)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • One-half (1/2) of your estate to the surviving spouse, and
      • The other one-half (1/2), split equally among the surviving children
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • One-fourth (1/4) of the fair market value of your real estate and one-half (1/2) of your personal property to your surviving spouse, and
        • The other three-fourths (3/4) of the fair market value of your real estate and the other one-half (1/2) of your personal property split equally among the surviving children
        • No children and both of your parents of deceased:
          • All of your estate will pass to your surviving spouse
        • No children, but at least one of your parents survives you:
          • Three-fourths (3/4) of your estate to your surviving spouse, and
          • The other one-fourth (1/4) to your surviving parents
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents and your siblings equally with each surviving parent getting at least one-fourth (1/4) of your estate
  • No spouse, children, parents, or siblings:
    • All of your estate passing to your siblings (brothers and sisters) children according to their per stirpes share. If none, then to grandparents or the children of your siblings according to their per stirpes share. If none, then to your aunts and uncles according to their per stirpes share

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 29-1-3-8), andChildren, born or adopted (Section 29-1-3-1)
    • Surviving spouse must be given:
      • One-half (1/2) of your estate
      • If there are surviving children from a prior spouse, then the second or subsequent spouse is entitled to one-third (1/3) of your personal property and one-third of your real estate for the rest of their life (Section 29-1-3-1)
  • Children, born or adopted (Section 29-1-3-1)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced surviving spouse (Section 29-1-5-8)
  • You get married without changing your will that does not provide for your new spouse:
    • Does not revoke the will (Section 29-1-5-8)

Out of state executors: Must post bond and appoint resident co-executor, but out of state executor can serve alone if they post a bond, file written notice of acceptance and appoint an in-state agent to accept legal papers (Section 29-1-10-1)


  • Minimum number of witnesses required: Two (Section 29-1-5-3)
  • Are witnesses allowed to be beneficiaries?: Yes; however, any beneficiary named in the will who is also a witness, then the portion of the will to the witness beneficiary will be void, unless the witness beneficiary is to receive shares under state intestate laws, then the witness beneficiary will receive those shares which may be less than amount voided in the will  (Section 29-1-5-2)
  • Requirements to be a witness, witnesses must:
    • Be an adult,
    • not be related to you by blood or marriage,
    • not be entitled to anything in your will,
    • not the person who singed your Declaration on your behalf, and
    • not be finically responsible for your healthcare

Property ownership (Sections 6-4.1-8-4, 32-17-2-1, and 32-17-3-1):

  • Common law state
  • Jointly held property is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship
  • If married, then property held by either party is presumed to create a tenancy by the entirety
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is recognized in this state

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 29-1-5-3)
  • Living will: Indiana Living Will Declaration (Section 16-36-4-10). Requires physician to certify in writing that you are in a terminal condition and your death would occur within a short period of time without the use of life-sustaining medical care
  • Durable Power of Attorney for Health Care Decisions and Appointments of Health Care Representative within the Indiana Living Will
  • Durable Power of Attorney (Section 29-3-5)