Estate Planning in Indiana

Married with children (same marriage)

Your spouse receives half the net estate. Your children split the other half equally by representation. Additionally, the surviving spouse receives a $25,000 off-the-top allowance before the estate is divided.

Married with children from a prior relationship

If the spouse ever had children with the decedent (even if deceased), the standard formula applies: spouse gets half. But if the spouse is a second or subsequent spouse who NEVER had children with the decedent, the spouse receives only 25% of the fair market value of real property (minus liens) plus half of personal property.

Married, no children

If parents survive, the spouse receives three-quarters of the net estate. If no parents survive, the spouse inherits everything.

Single with children

Your children inherit everything equally by representation.

Single, no children

Your parents inherit equally (parents are treated as the same degree as siblings, with a minimum one-quarter share each). If no parents survive, siblings inherit by representation. The chain continues through grandparents and more distant relatives.

What makes a will valid

A will must be in writing, signed by the testator (or by another person in the testator's conscious presence and at the testator's direction), and signed by at least two attesting witnesses in the presence of the testator and each other. Indiana also allows counterpart execution under attorney supervision and electronic wills.

What people think

That a handwritten will is valid in Indiana, or that witnesses can sign at different times.

What actually happens

Indiana does not recognize holographic (unwitnessed handwritten) wills. Two witnesses must sign in the presence of the testator and each other. Indiana's self-proving clause can serve as both the attestation and the self-proving declaration in a single step — no separate notarized affidavit is needed if the clause meets the statutory requirements.

Common failure

Not understanding the second-spouse real property rule. Without a will, a childless second spouse receives only 25% of real property value (minus liens). A will or trust is essential to override this default and ensure the surviving spouse can keep the family home.

When a trust is better

When overriding the second-spouse real property rule is the primary goal, when avoiding probate for real property (beyond what a TOD deed covers), when managing property in multiple states, or when structuring distributions for minor children over time.

Execution checklist

1. Sign the will with two witnesses present — both must sign in the presence of the testator and each other
2. Include a self-proving clause that meets IC 29-1-5-3.1(d) requirements — this serves as both attestation and self-proving
3. If using counterpart execution, ensure an attorney or directed paralegal supervises and files the affidavit of compliance
4. Do NOT rely on a handwritten will — Indiana does not recognize holographic wills
5. Consider recording a transfer-on-death deed for real property to avoid probate on the home

What it does

Grants authority to a named agent to manage financial, legal, and property affairs on your behalf.

Key rule

Indiana recognizes durable powers of attorney that survive the principal's incapacity. The document must include explicit durability language. Without it, the POA terminates at incapacity, forcing the family to petition for guardianship or conservatorship.

Real-world friction

Financial institutions may reject POAs they consider outdated, unclear, or non-standard. Notarizing the document and using Indiana-specific language reduces friction.

Common mistake

Confusing the financial POA with the healthcare representative appointment. They are separate documents with separate legal authority.

What it covers

Your preferences for life-sustaining treatment and the designation of a healthcare representative authorized to make medical decisions if you become unable to do so.

What's different

Indiana uses a 'living will declaration' for treatment instructions and a separate 'healthcare representative' appointment for agent designation. Both can be combined into a single advance directive document.

Execution requirements

The living will declaration must be signed by the declarant in the presence of two witnesses. The healthcare representative appointment must be signed and witnessed. Notarization is recommended but not required.

Common misunderstanding

Assuming a financial POA gives the agent authority over medical decisions. In Indiana, healthcare and financial decision-making require separate documents.

When required

When assets are held solely in the decedent's name without a beneficiary designation, TOD deed, survivorship rights, or trust.

What makes Indiana different

Indiana's probate system has two distinctive features. First, the small estate threshold was raised to $100,000 in 2022 — one of the more generous thresholds in the country, allowing many estates to avoid formal probate entirely. Second, Indiana allows counterpart execution of wills under attorney supervision, which means remote will signing is available without needing a full electronic will. Indiana also provides transfer-on-death deeds for real estate, which allow homeowners to bypass probate for their most significant asset. The state has no estate tax or inheritance tax.

Probate paths

What people get wrong

Not using a transfer-on-death deed for real property. Indiana's TOD deed is a powerful, low-cost probate avoidance tool — revocable during lifetime, recorded with the county recorder, and the beneficiary has no interest until the owner's death. Many Indiana homeowners go through probate when a simple recorded deed would have avoided it entirely.

When a trust is useful

When overriding the second-spouse real property rule is critical, when managing multiple properties, when structuring distributions for minor children, when privacy matters, or when the estate exceeds the small estate threshold and includes both real and personal property.

When a trust is unnecessary

When a TOD deed covers the real property, beneficiary designations cover financial accounts, and the personal property estate qualifies for the small estate affidavit. Indiana's generous $100,000 threshold and TOD deed availability mean many estates don't need a trust.

Key mistake

Creating a trust but not retitling assets into it. Unfunded trust assets go through probate and are subject to intestacy rules — including the second-spouse real property reduction — if no valid will exists.

Not planning for the second-spouse real property rule

A childless second or subsequent spouse receives only 25% of real property value (minus liens) when children from a prior marriage survive. Without a will or trust, a surviving spouse who expected to keep the family home may be forced to sell. A will naming the spouse as beneficiary — or a trust or TOD deed — overrides this default.

Relying on a holographic will

Indiana does not recognize holographic (unwitnessed handwritten) wills. A handwritten will without two witnesses is invalid. Intestacy applies.

Not using a transfer-on-death deed for real property

Indiana's TOD deed transfers real property automatically at death, is revocable during lifetime, and costs only the recording fee. Many homeowners go through formal probate when this tool would have avoided it.

Attempting counterpart execution without attorney supervision

Indiana allows testator and witnesses to sign on separate paper counterparts — but only under attorney or directed paralegal supervision with an affidavit of compliance. Unsupervised counterpart execution makes the will voidable.

Not understanding the adultery and abandonment forfeiture rules

Indiana law provides that a spouse living in adultery at the time of the decedent's death forfeits all rights to the estate. Abandonment triggers the same result. These provisions can eliminate the surviving spouse's share entirely.

Not taking advantage of the raised small estate threshold

Indiana increased the small estate threshold from $50,000 to $100,000 after June 30, 2022. Many families still go through full probate for personal property estates that now qualify for the simplified affidavit procedure.