The IndyBar Legislative Committee is currently monitoring the following estate planning and administration related legislation. IndyBar members can request that the Legislative Committee track specific legislation by contacting committee chair Mindy Westrick at email@example.com.
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SB36 PROBATE, TRUST, AND TRANSFER ON DEATH MATTERS. (DELPH M)
Provides that a petition or other document filed in court by a personal representative in an estate proceeding with a written consent to the petition or other document or a written waiver of notice of the proceedings in the estate is not required to include a statement that the personal representative delivered a copy of the petition or other document to each person whose written consent or waiver of notice of proceedings was presented to the court, if the petition or other document contains a statement by the person whose signature appears on the consent or waiver: (1) identifying the petition or other document; and (2) affirming that the person has received a copy of the petition or other document and had a reasonable time to read and understand the petition or other document before signing the consent or waiver. Requires a party contesting the validity of a will to serve a copy of the complaint on the counsel for the personal representative. Provides that the court may not enter a default judgment for the contesting party unless proof of service on the counsel for the personal representative is made to the court. Specifies that the procedures for dispensing with the administration of small estates are available to distributees and persons acting on behalf of distributees rather than persons claiming to be entitled to payment from the decedent's estate. Provides for an enforcement action against a person who does not comply with a fiduciary's demand or instruction. Allows a court to award attorney's fees and costs in certain enforcement proceedings. Provides that payments on liens paid with respect to a probate distribution are charged to the beneficiaries of the distribution unless the will provides expressly or by necessary implication that the payment be charged against the residue of the estate. Provides that a general directive in a will to pay debts does not imply an intent that a devise of property subject to a lien be distributed free from the lien. Provides that if trust property subject to a lien is specifically distributable, the distributee shall take the property subject to the lien unless the terms of the trust provide expressly or by necessary implication that the lien be otherwise paid. Provides that payments on liens paid with respect to a trust distribution are charged to the beneficiaries of the distribution unless the trust provides expressly or by necessary implication that the payment be charged against the residue of the trust estate. Provides that a general directive in a trust to pay debts does not imply an intent that a distribution of property subject to a lien be distributed free from the lien. Makes changes to the uniform principal and income act (act). Provides that a personal representative is a fiduciary under the act if provided for: (1) by the will; or (2) by a law allowing the personal representative to account for and distribute income received during the estate administration separately from the corpus of the estate. Provides the following with regard to distributions to beneficiaries after an income interest in a trust ends: (1) Upon the death of the settlor of a revocable living trust, the settlor's trust interest becomes a terminating income interest and the property transferred upon the settlor's death becomes a part of the trust when the property is received by the trust. (2) A decedent's estate is not a terminating income interest. Provides that an asset becomes subject to a trust on the date the asset is distributed to the trust from the decedent's estate: (1) if the income received during the administration of the estate was accounted for and distributed by the estate as part of the corpus of the estate; and (2) unless the will or other applicable law provides that income received during the estate administration is accounted for and distributed by the estate as income and not as part of the corpus of the estate. Specifies that provisions that determine the period in which an income beneficiary is entitled or eligible to receive net income of a trust do not control how receipts and disbursements are allocated to or between principal and income during that period. Specifies that provisions regarding which income receipts and disbursements of a trust are to be taken into account in determining the net income of the trust for the period after the beginning and before the end of a beneficiary's income interest do not control the initial classification of receipts and disbursements as between principal and income. Defines the following for purposes of the trust code: (1) "Trust instrument". (2) "Terms of a trust", "terms of the trust", or "terms of a charitable trust". Provides that unless the trust provides otherwise, a trustee has a duty to keep current income beneficiaries and, in the case of a trust that has become irrevocable, contingent income beneficiaries, reasonably informed by providing access to the trust's accounting and financial records upon written request. Provides that unless the trust provides otherwise, the trustee has a duty after the trust becomes irrevocable to provide income beneficiaries and remaindermen with a copy of the trust instrument upon written request. Provides that a trustee's power under certain circumstances to appoint all or part of the principal of a trust into a second trust is available when the trustee has discretion to invade the principal of the first trust to make distributions to or for the benefit of at least one person. (Current law grants the power of appointment to a trustee who has absolute power to invade the principal of the first trust to make such distributions.) Provides that the notice given to a person by a trustee that starts the period within which to contest the validity of a trust must state: (1) the person's interest in the trust, as described in the trust document; or (2) that the person has no interest in the trust. Provides that a delegation of authority by an attorney in fact survives even if the attorney in fact who delegated the authority fails or ceases to serve unless: (1) the delegation of authority by its terms terminates under these circumstances; (2) the delegation of authority is revoked; or (3) the power of attorney expires or becomes otherwise invalid or unenforceable. Specifies that a child of the principal who requests an accounting from an attorney in fact is entitled to delivery of the requested accounting. Specifies that the 60 day delivery deadline set forth in current law for requested accountings applies to court ordered accountings. Provides that in the case of a principal who has died: (1) the court may order an accounting at any time; and (2) the 60 day delivery deadline applies to a written request for an accounting that is submitted to the attorney in fact not later than nine months after the date of the principal's death. Defines the terms "fiduciary" and "fund" for purposes of a statute concerning powers granted to an attorney in fact with respect to fiduciary transactions of the principal. Provides that the powers granted to an attorney in fact apply: (1) to a fund existing at the time the power of attorney is executed; (2) to a fund created after the power of attorney is executed; and (3) whether or not the fund is located in Indiana. Requires, upon the death of an owner whose transfer on death deed has been recorded, that the beneficiary file an affidavit in the office of the recorder that includes the date of the owner's death (instead of a certified copy of the owner's death certificate). (The introduced version of this bill was prepared by the probate code study commission.)