2016 Indiana Code TITLE 29. PROBATE ARTICLE 1. PROBATE CODE CHAPTER 13. COLLECTION AND MANAGEMENT OF ASSETS
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IC 29-1-13
Chapter 13. Collection and Management of Assets
IC 29-1-13-1
Possession of property; duties of personal representative
Sec. 1. Every personal representative shall have a right to take,
and shall take, possession of all the real and personal property of the
decedent. The personal representative:
(1) shall pay the taxes and collect the rents and earnings thereon
until the estate is settled or until delivered by order of the court
to the distributees;
(2) shall keep in tenantable repair the buildings and fixtures
under the personal representative's control;
(3) may protect the buildings and fixtures under the personal
representative's control by insurance; and
(4) may maintain an action:
(A) for the possession of real property; or
(B) to determine the title to real property.
(Formerly: Acts 1953, c.112, s.1301; Acts 1973, P.L.287, SEC.7.) As
amended by Acts 1976, P.L.125, SEC.5; Acts 1979, P.L.268, SEC.4;
P.L.95-2007, SEC.10.
IC 29-1-13-1.1
Right of personal representative to access decedent's electronic
communications and other digital assets
Sec. 1.1. IC 32-39-2-4 and IC 32-39-2-5 apply to the right of a
personal representative who is acting on behalf of the estate of a
deceased person to access:
(1) the content of an electronic communication (as defined in
IC 32-39-1-6);
(2) a catalogue of electronic communications (as defined in
IC 32-39-1-5); or
(3) any other digital asset (as defined in IC 32-39-1-10);
of the deceased person.
As added by P.L.12-2007, SEC.1. Amended by P.L.137-2016, SEC.2.
IC 29-1-13-1.5
Access to safe deposit box; duties of financial institutions
Sec. 1.5. (a) Upon the death of an individual, a financial
institution shall grant access in the following order of priority to a
safe deposit box leased by the individual at the time of the
individual's death:
(1) A surviving joint lessee of the safe deposit box, upon the
presentation of proof of the individual's status as a joint lessee.
(2) The personal representative of the individual's estate, upon
the presentation of letters testamentary or letters of
administration.
(3) The personal representative named in the individual's will,
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upon the presentation of an affidavit meeting the requirements
of subsection (c) if a probate estate has not been opened.
(4) The trustee of a trust created by the individual that was
revocable during the individual's life, upon the presentation of
an affidavit meeting the requirements of subsection (c) if a
probate estate has not been opened.
(5) Any other individual, upon the presentation of a court order
directing access to the safe deposit box.
(b) A person granted access to a safe deposit box under subsection
(a) may exercise the following rights:
(1) The right to open the safe deposit box.
(2) The right to remove the contents of the safe deposit box.
(3) The right to cancel the lease for the safe deposit box.
(c) An affidavit required by subsection (a)(3) or (a)(4) must
contain the following information:
(1) The name of the individual leasing the safe deposit box and
the date of the individual's death.
(2) A statement as to whether the individual died testate or
intestate.
(3) The name of the county in which the individual was
domiciled at the time of the individual's death.
(4) A statement that no application or petition for the
appointment of a personal representative has been granted or is
pending in any jurisdiction.
(5) A statement under the penalty of perjury that the affiant is
qualified under subsection (a)(3) or (a)(4) to obtain access to
the safe deposit box leased by the individual.
(d) Except as provided in subsection (h), a financial institution
that is presented with a request for access to a safe deposit box by a
person described in subsection (a):
(1) shall grant access to the safe deposit box within three (3)
business days of the presentation of the appropriate
documentation required by subsection (a); and
(2) is liable to:
(A) the estate of the individual leasing the safe deposit box;
or
(B) an individual entitled to access to the safe deposit box
under subsection (a);
if it fails to grant access to the safe deposit box within three (3)
business days of the presentation of the appropriate
documentation required by subsection (a).
(e) A financial institution that provides access to a safe deposit
box under this section is discharged and released from liability and
responsibility for the assets held in the safe deposit box. The
financial institution is not required to:
(1) inquire into the truth of any statement in an affidavit
presented under this section; or
(2) participate in the disposition of the assets held in the safe
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deposit box.
(f) A plaintiff who prevails in an action:
(1) to compel a financial institution presented with a request for
access to a safe deposit box in accordance with this section to
accept the authority of the person requesting access; or
(2) for damages arising from a financial institution's refusal to
grant the requested access;
is entitled to recover the amounts specified in subsection (g).
(g) A prevailing plaintiff described in subsection (f) is entitled to
the following:
(1) Three (3) times the amount of the actual damages.
(2) Attorney's fees and court costs.
(3) Prejudgment interest on the actual damages calculated from
the date that the appropriate documentation was presented to
the financial institution under subsection (a).
(h) If a financial institution requires the services of a locksmith or
other contractor to gain access to a safe deposit box, the financial
institution has five (5) additional business days to comply with the
requirements of subsection (d).
As added by P.L.101-2008, SEC.6.
IC 29-1-13-2
Preserving estate; action to prevent loss
Sec. 2. No executor named in the will shall interfere with the
estate entrusted to him further than to preserve the same until the
issuing of letters; but, for that purpose, he may prosecute any suit to
prevent the loss of any part thereof.
(Formerly: Acts 1953, c.112, s.1302.)
IC 29-1-13-3
Actions; trespass; waste; costs; examine party
Sec. 3. Every personal representative shall have full power to
maintain any suit in any court of competent jurisdiction, in his name
as such personal representative, for any demand of whatever nature
due the decedent or his estate or for the recovery of possession of
any property of the estate or for trespass or waste committed on the
estate of the decedent in his lifetime, or while in the possession of
the personal representative; but he shall not be liable, in his
individual capacity, for any costs in such suit, and shall have power,
at his option, to examine the opposite party under oath, touching such
demand.
(Formerly: Acts 1953, c.112, s.1303.)
IC 29-1-13-4
Fraudulent conveyances; recovery
Sec. 4. The real and personal property liable for the payment of
debts of a decedent shall include all property transferred by him with
intent to defraud his creditors or any of them, or transferred by any
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other means which is in law void as against his creditors or any of
them; and the right to recover such property, so far as necessary for
the payment of the debts of the decedent, shall be in the personal
representative, who shall take such steps as may be necessary to
recover the same. Such property shall constitute general assets for
the payment of all creditors; but no property so transferred shall be
taken from anyone who purchased it for a valuable consideration, in
good faith and without knowledge of the fraud.
(Formerly: Acts 1953, c.112, s.1304.)
IC 29-1-13-5
Compromise; debtor or obligor
Sec. 5. When it appears for the best interest of the estate, the
personal representative may on order of the court effect a fair and
reasonable compromise with any debtor or other obligor, or extend,
renew or in any manner modify the terms of any obligation owing to
the estate. If the personal representative holds a mortgage, pledge or
other lien upon property of another person, he may, in lieu of
foreclosure, accept a conveyance or transfer of such encumbered
assets from the owner thereof in satisfaction of the indebtedness
secured by such lien, if it appears for the best interest of the estate
and if the court shall so order. In the absence of prior authorization
or subsequent approval of the court, no compromise shall bind the
estate.
(Formerly: Acts 1953, c.112, s.1305.)
IC 29-1-13-6
Real estate interest as personal assets; proceeds from sale of real
estate
Sec. 6. (a) Unless foreclosure shall have been completed and
redemption period shall have expired prior to the death of a decedent,
real property mortgages, the interest in the mortgaged premises
conveyed thereby, and the debt secured thereby, or any real property
acquired by the personal representative in settlement of a debt or
liability, or any real property sold by the decedent on written
contract, the purchase price of which shall not have been paid in full
prior to the death of the decedent, shall be deemed personal assets in
the hands of his personal representative and be distributed and
accounted for as such, but any sale, mortgage, lease or exchange of
any of such real property made after the death of the decedent shall
be made pursuant to IC 29-1-15, unless otherwise provided in the
will of the decedent.
(b) In all cases of a sale of real property by a personal
representative, upon order of the court the surplus of the proceeds of
such sale remaining on the final settlement of the account shall be
considered as real property and disposed of among the persons and
in the same proportions as the real property would have been if it had
not been sold.
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(Formerly: Acts 1953, c.112, s.1306.) As amended by Acts 1982,
P.L.171, SEC.34.
IC 29-1-13-7
Mortgages; release and discharge
Sec. 7. When, in any case, a mortgage to the decedent is
redeemed, or the debt secured thereby is or has been paid to the
decedent or to his personal representative, the latter shall release and
discharge the mortgage.
(Formerly: Acts 1953, c.112, s.1307.)
IC 29-1-13-8
Valueless property; abandonment
Sec. 8. When any property is valueless, or is so encumbered, or is
in such condition that it is of no benefit to the estate, the court may
order the personal representative to abandon it.
(Formerly: Acts 1953, c.112, s.1308.)
IC 29-1-13-9
Embezzlement; conversion
Sec. 9. If a person embezzles or converts to the person's own use
the personal property of a decedent before the appointment of a
personal representative, the person is liable to the estate for the value
of the property embezzled or converted.
(Formerly: Acts 1953, c.112, s.1309.) As amended by P.L.154-1990,
SEC.8.
IC 29-1-13-10
Petitions; concealment; embezzlement; conversion; adverse
interest; attachment
Sec. 10. (a) Upon the filing of a petition by the personal
representative or any other person interested in the estate alleging
that any person has, or is suspected to have, concealed, embezzled,
converted or disposed, of any real or personal property belonging to
the estate of a decedent, or has possession or knowledge of any such
property or of any instruments in writing relating to such property,
the court having probate jurisdiction, upon such notice as it may
direct, may order such person to appear before it for disclosure, and
may finally adjudicate the rights of the parties before the court with
respect to such property. Insofar as concerns parties claiming an
interest adverse to the estate, such procedure for disclosure or to
determine title is an independent proceeding and not with
IC 29-1-7-2.
(b) Any person so ordered to appear who fails or refuses to
appear, or who refuses to answer concerning such property or to
deliver up any such property in which no interest adverse to the
estate is claimed by him, may be attached and imprisoned in the
discretion of the court.
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(Formerly: Acts 1953, c.112, s.1310.) As amended by Acts 1982,
P.L.171, SEC.35.
IC 29-1-13-11
Business of decedent; continuing
Sec. 11. Upon a showing of advantage to the estate, the court may
authorize the personal representative to continue any business of the
decedent for the benefit of the estate; but if the decedent died testate
and his estate is solvent, the order of the court shall be subject to the
provisions of the will. The order may be with or without notice. If
notice is not given to all interested persons before the order is made,
notice of the order shall be given within five (5) days after the order,
and any such person not previously notified by publication or
otherwise may show cause why the order should be revoked or
modified. The order may provide:
(a) For the conduct of the business solely by the personal
representative or jointly with one (1) or more of the decedents'
surviving partners, or as a corporation to be formed by the personal
representative alone or acting with others;
(b) The extent of the liability of the estate, or any part thereof, or
the personal representative, for obligations incurred in the
continuation of the business;
(c) As to whether liabilities incurred in the conduct of the
business are to be chargeable solely to the part of the estate set aside
for use in the business or to the estate as a whole; and
(d) As to the period of time for which the business may be
conducted, and such other conditions, restrictions, regulations and
requirements as the court may order.
(Formerly: Acts 1953, c.112, s.1311.)
IC 29-1-13-12
Conveyance or lease after death of decedent
Sec. 12. (a) When any person legally bound to make a conveyance
or lease dies before making the same, the court, with or without
notice, may direct the personal representative to make the
conveyance or lease to the person entitled thereto. A petition for this
purpose may be made by any person claiming to be entitled to such
conveyance or lease, or by the personal representative, or by any
other person interested in the estate or claiming an interest in the real
property or contract, and shall show the description of the land and
the facts upon which such claim for conveyance or lease is based.
Upon satisfactory proofs the court may order the personal
representative to execute and deliver an instrument of conveyance or
lease to the person entitled thereto upon performance of the contract.
A certified copy of the order may be recorded with the deed of
conveyance or lease in the office of the recorder of the county where
the land lies, and shall be prima facie evidence of the due
appointment and qualification of the personal representative, the
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correctness of the proceedings and the authority of the personal
representative.
(b) If a personal representative has been given power by will to
make a conveyance or lease, he may, in lieu of the foregoing
procedure, and without order of the court, execute a conveyance or
lease, pursuant to and in accordance with such power, to the person
entitled thereto upon performance of the contract. A certified copy
of the will and a certified copy of the personal representative's letters
may be recorded with the deed of conveyance or lease in the office
of the recorder of the county where the land lies, and shall be prima
facie evidence of the due appointment and qualification of the
personal representative and his authority to execute the deed of
conveyance or lease.
(c) If the contract for a lease or conveyance requires the giving of
warranties, the deed or lease to be given by the personal
representative shall contain the warranties required. Such warranties
shall be binding on the estate as though made by the decedent but
shall not bind the personal representative personally.
(Formerly: Acts 1953, c.112, s.1312.)
IC 29-1-13-13
Contracts; performance by personal representative
Sec. 13. If at the time of his death the decedent was obligated by
the terms of any contract to further performance thereunder, his
personal representative may, if it appears feasible and in the best
interests of the estate, proceed to carry out the terms of such contract.
In the event that the performance of such contract shall necessitate
the expenditure of funds of the estate, or shall require the utilization
of assets other than property which is itself the subject matter of such
contract, such personal representative shall request and receive
instructions from the court regarding the performance thereof.
(Formerly: Acts 1953, c.112, s.1313.)
IC 29-1-13-14
Investment of funds
Sec. 14. Subject to his primary duty to preserve the estate for
prompt distribution, and to the terms of the will, if any, the personal
representative may with the approval of the court whenever it is
reasonable to do so, invest the funds of the estate and make then
productive. Such investments shall be restricted to the kinds of
investments permitted to trustees by the laws of this state.
(Formerly: Acts 1953, c.112, s.1314.)
IC 29-1-13-15
Deposit of funds
Sec. 15. Whenever it is consistent with a proper administration of
the estate, the personal representative may deposit, as a fiduciary, the
funds of the estate in a bank in this state as a general deposit, either
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in a checking account or in a savings account. If the personal
representative is a bank or trust company, it may make such deposit
in its own bank.
(Formerly: Acts 1953, c.112, s.1315.)
IC 29-1-13-16
Collection of indebtedness; secure possession of property; special
administrator appointed
Sec. 16. Whenever any interested person files with the court
having jurisdiction of an estate a petition showing that such person
has reason to believe and does believe that the personal
representative of the estate or any other person is indebted to the
estate, or that any property is in the possession of the personal
representative of the estate or of any other person, and that diligent
effort is not being made to collect such indebtedness or to secure
possession of such property for the estate, the court shall hold a
hearing upon such petition and shall determine what action, if any,
shall be taken. Should the court decide that there is sufficient merit
in the petitioner's claim to warrant action, it shall direct the personal
representative to take such action as the court deems necessary;
provided, however, where the person claimed to be indebted to the
estate or having in his possession property belonging to the estate is
the personal representative or where the court is of the opinion that
the personal representative would not or could not for any reason
prosecute such action with sufficient vigor, it shall appoint a special
administrator to take such action as it shall direct.
(Formerly: Acts 1953, c.112, s.1316.)
IC 29-1-13-17
Action to enforce a written demand or instruction from a personal
representative
Sec. 17. (a) If a person fails to comply with a personal
representative's written demand or instruction that is consistent with
this article regarding the property of the decedent, the personal
representative may bring an enforcement proceeding to compel
compliance with the written demand or instruction.
(b) A court may award attorney's fees and costs to the estate in an
enforcement proceeding under subsection (a) if the person indebted
to the decedent or holding property of the decedent, other than an
insurer regulated under IC 27:
(1) acted in bad faith in failing to comply with the written
demand or instruction; or
(2) refused to respond to the written demand or instruction
within thirty (30) business days after receiving the demand or
instruction, if the demand or instruction is consistent with this
article.
(c) A court may, upon notice and hearing, award attorney's fees
and costs to an estate bringing an enforcement proceeding under
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subsection (a) against an insurer regulated under IC 27 if:
(1) the insurer failed to respond pursuant to IC 27 after
receiving a written demand or instruction from the personal
representative; and
(2) the written demand or instruction is consistent with this
article.
As added by P.L.51-2014, SEC.5.
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