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>> Good evening and welcome to PBS Fort Wayne.

The show tonight is called LIFE Ahead as it is every Wednesday night at seven thirty we have different topics every week but I think you're really going to enjoy this one because many of you will have to deal with this subject at some point we're going to be talking about probate.

Pretty interesting topic and we have two of the best here to give you guidance and information on that.

First of all, let me introduce to you Heidi Adare, elder law attorney and on LIFE Ahead many times or everybody knows you Heidi.

Well, hopefully somebody does.

Yeah.

And ah once a year guest Yeah.

We're so honored where you did skip this one year.

>> But other than that you've been with us from a number of years now ten ten years or so I guess I think I've been on this show before you were doing it.

Oh well you've it or not not that there was really a show then.

>> Oh see he's trying to get out of bed or now but this is Magistrate Phillip Houck and I want to tell you this is basically your show as viewers because we want to give you information and education that can help you in your LIFE Ahead the title of our show.

So please give us a call.

We have a phone system in the control room and they will answer your calls and direct them out here to the studio and I'll tell if if you're willing to talk live to us.

>> That's wonderful because then if if Judge Hawk or Heidi have questions back to you, we'll be right there with you on the phone.

>> But if you're not comfortable talking on the air live the phone answer will take your call and take your question and then they send it out here to the studio to me and I'll I'll read it to you.

>> So that's how our show works.

Well, good topic for us this evening and I think you're going to learn a lot.

>> OK, let's talk about probate and how it works.

I'm going to start with you, Heidi.

Define probate for people that aren't familiar with it or have not had to deal with it yet.

OK, so the technical meaning of probate is actually just offering a will proving offering a will up and proving that it's valid.

But people just in general think of probate as the process where you go to court after someone passes away and go through an orderly process to pay their bills and and distribute their assets.

>> Does everyone go through probate when there's a doubt?

>> No, not everyone does.

Sometimes people have their assets structured in such a way that probate isn't necessary.

So like if I had a joint account with my child or my spouse and I died no probate on that account is required just automatically goes to the person who owns it jointly with me.

So I say OK, OK George how you deal with probate all the time what are some of the most common things that come before you as a magistrate?

>> Well I've seen a lot of things have all become common after thirty six years I suppose so yeah.

>> But the most common things first of all the other thing to think about though as far as what a probate assets is if your estate is worth less than now one hundred thousand dollars one hundred at less than a hundred when we were on the show before four years I was talking about fifty thousand dollars.

>> There is a summary process that you could administer those assets pretty quickly pretty painlessly and you do it by affidavit.

>> Oh, not with probate and so you don't have to come in to see me.

Not that people should be wanting to avoid seeing me.

I don't really get that I feel good just complex.

Sometimes people don't want to see me talk about avoid probate.

>> It's the worst thing in I was gonna ask about that and it really isn't the worst thing in the world.

>> In fact I think Heidi would you know OK, maybe we have vested interests here.

It's what we do but it's a process it's one of the oldest forms of law that there is OK, probate is one of the original ones.

>> You know what I know about probate or about magistrates in Rome back in those days the magistrate was one of the very highest level of government.

>> Well, it's a big deal.

That was a big deal.

Well, the magistrates in Indiana are not quite we didn't quite esteemed.

>> We don't have to bow to you at least not at all.

Not the law and but it's one of the oldest forms of law.

It's a very tried and true process.

Yeah.

I think in Allen County in particular we have a system set up that's really good and we have really good lawyers here and it goes pretty fast and it's pretty smooth and it's a good clean way to get a state administered state administration marshaling assets, paying your bills, making sure that what's left over goes to the people that you wanted it to go to.

>> OK, you said it goes pretty smoothly and for both of you roughly how long does it take to settle in the state if you do need to go through probate and you know generically and I know what it's going to be different for every case.

>> But is it costly, Heidi?

I mean how long does it take to get through probate?

I mean we say generally a year.

Yeah, but to be honest where you died in relation to when your tax return is due is kind of what dictates that oh really can't you don't band on that.

>> You don't want to give away all the assets until you know all the bills have been paid.

OK, and if we don't know what your tax liability is going to be and you died in June we need to wait until springtime to end the estate.

>> I didn't the I never thought of that.

>> If you happen to die in December you might be done in three or four months.

So that's the record there.

Yeah you can go that fast and I think our average in Allen County is somewhere around thirteen months because some states will go much longer and sometimes the most common reason for that I would say is probably sometimes you have difficulty selling some assets like real estate can be.

Yeah, particularly commercial real estate these days residential real estate goes usually really bad not always but sometimes things can drag on and sometimes you can get things that are complex.

Sometimes you can have will contests, you can have all kinds of things you can have disputes among the heirs on certain things.

>> Those happen.

Those are exceptional though those right.

That's not my thing.

>> It's really not common out of you know, a thousand or so estates that we run through.

Harlan County a year.

>> It's a very small percentage but most of them go very smoothly and it's always like in the movies or TV shows when there's like some big you know, contesting the will and it happened a lot.

>> It happens trust me, but it's it doesn't happen commonly.

Well, OK, to think about that for a minute, what types of things would people contest a will for either one of you?

What I would say perhaps undue influence is probably the most common and oh they say that the the person that died was under influence when they made their well somebody has influenced that like maybe one of the kids who was maybe got a little closer to mom and maybe mom wasn't quite at the end of her life as sharp as she had been, maybe some dementia issues, things like that that are common with older individuals.

And she wrote a will and and conveniently wrote the other siblings out and just that one remained well that can cause a well contest pretty quick.

That's fairly common cause or reason for a well contest.

>> OK, Heidi, can you add to that I mean I would just echo what what magistrate is saying that I'm curious are you seeing it grow those types of things?

>> I think in general I actually thought about this as it might be a topic to talk about.

I think in general we're seeing more litigation and overall just I think as a trend in society we're seeing more of these sorts of battles come up.

It's still relatively small amount but it's more than because I've been there myself.

>> I'm thirty six thirty six thirty six years ago.

OK, so he knows all about can answer any college exam and I would say you know family structures are becoming more complex.

>> That's true.

Families and stepchildren adopted you know just all kinds of things and that sometimes can foster distrust and people doing things that you know fifty years ago you would have never done.

>> You kind of fell in line in your family and and that's the way it was exactly like I think that's a good point.

>> You know, I recently spoke to a friend who lost her husband recently and and it was kind of a complex blended family and he actually had it put in as well.

>> And if anybody contested the will they weren't going to get anything.

So you can do that.

Yeah, I mean that's a fairly new statute in Indiana that really means that if you contested it what you were going to get you forfeit and to make that useful if you're going to rely on that, you actually want to leave the person something so they have to think about well do I want to lose that ten thousand dollars if I contest the will if you leave them only five dollars, what do they have to lose?

They should try.

So yeah that's a new a relatively new provision.

>> It used to be that those clauses meant nothing but that's just a couple of years ago is the statute that Heidi is referring to.

>> But it if you really do think that that there's a reason to contest the will, you're not going to lose anything the way that it's written.

You should do it.

It it doesn't just open the door wide open.

>> So it's kind of nuanced the way that statute is written.

You know, we actually have a caller right now that has a question about contesting wills.

>> Karen, you're on the line with us.

>> What is your question for our guest this evening?

I may have been talking to the person the interview you and you were addressing the question that that clause or if you can test the will that you are automatically not to get anything.

Is that what you were talking about then?

>> And it sounds like it's a valid clause to put in a well, OK, so yeah, if you'd answer that or magistrate you can do that you should do if I understand correctly if you succeed in your contest then you haven't lost everything you can contest it but you have to prove that you had a valid reason to contest it so it doesn't absolutely prohibit anybody from contesting it no matter what.

>> OK, I mean you can't just go you know, before you and say I don't like what they said in there.

Well I think I should have had fifty percent.

>> You can't just do that champion verification.

If you had some good reason to contest it then you're not going to lose out but you have to if you don't prove it then you're going to lose out on whatever it was that was left to you.

>> Does that answer your question, Karen?

If she's still with us, I think she's OK. Go ahead.

The contest clause keeps people it just gives them pause to think about.

I don't I can't be frivolous about this because I may have something to lose if just throwing stuff out that really is not based in facts.

So it just causes people to think twice and make sure they have a good reason as magistrate says.

>> Excellent, excellent.

Well, I want to talk a little bit about legal documents because of course those always need to be done correctly whether you're going before a magistrate for probate or not Heidi.

You have recommendations of documentation people should always make sure they have.

>> Yeah, I mean basic legal documents make sure you've got powers of attorney somebody to handle finances and health care if you become incapacitated in a will is good even though we do have a statute that says where your assets go if you don't have a will I say just do a will even if you think the statute meets what you want to happen just to have it in writing so that nobody's got to go pull out the book and say well this is where the estate goes.

>> Do a will people ever ever contest that?

>> And that's what the statute says or either mean.

>> Yeah.

Either the will or.

Well what we're talking about a situation where somebody dies intestate meaning without a will.

Yes, OK. And then then the state had there's a there's a statute that says who gets and generally it's your next of kin and it's who most people leave.

>> There's not one way.

Yeah.

exactly.

But it's not maybe exactly what you would have wanted it.

It may have been people could they can't contest that though.

I mean those shares are those shares they could contest maybe that they thought that there was a will and that it's missing now or something like that.

But what's in that statute is going to stay in that statute and that will define who gets your property.

>> OK, I would say though that when people find a will or know that there's a will it does give them some sort of comfort because when people call in and don't don't have a will, they can't find a will.

They're in panic mode a lot of times and it takes us a little while to kind of talk them through and say we can take care of it.

The state's not going to get all of the money.

We'll figure it out.

>> What happens if you can never find a will?

Does does it happen?

Well, you turn to this statute and it just tells you if you're married this is what happens if you're not married.

This is what happens if you have kids.

This is what happens and only if you absolutely don't have a single relative in the whole wide world does the state of Indiana take the money.

>> So that's a misconception.

>> People think if they don't have the will the state's going to get it.

But really crazy things need to your have your hand up but you've been inclined.

>> Well yeah but but and how do you know this well too and that is everybody has errors.

It's just sometimes it's really hard to find them and there are services out there that that's that's there that's what they're in business to do is to find er locator services and those searches can get pretty far flung and I've seen some of them and I've seen one fairly recently where they really couldn't find any errors really and that was very usually usually I mean if you spend five or ten thousand dollars and sometimes it can be that expensive to find and it can be more they can find somebody they can find and er again make wonderful TV shows and movies.

>> I don't think they do those sorts of things.

Ah but you know I mean I mean I wouldn't be surprised if there's a situation where somebody just has not had a relation with any relatives for decades.

>> Yeah.

So they wouldn't even want to do it well because they and in that case you think if you're to the point where somebody is going to have that hard of a time finding maybe you would have rather left to a charity or something like that so well let's you do that you really want to have a will in that situation.

Exactly.

I get that for sure.

Don't forget give us a call here (969) 27 twenty .

We'll be right here with you for a few more minutes.

Magistrate, what's the difference between supervised and unsupervised administration?

>> OK, just as you might expect there are there are first of all there are two basic kinds of administrations supervised and unsupervised and it means pretty much just what it sounds like and a supervised administration has a higher level of scrutiny done by the court.

That means my job is a little more intense.

OK, courts job accountings have to be filed with the court and and you have to get permission to do certain things like sale of real estate for example that has to be brought before the court and record made and we have to determine whether it's a good idea to do those things.

But most administrations are unsupervised and in those cases the heirs do the supervision.

Really?

Oh yeah.

Yeah because they're they're all in agreement that the court doesn't need to do this.

We'll keep an eye on all this and if anything starts go haywire, I mean they can notify the court hey there's a problem here but as long as they're all getting along and doing things the way they should, that's an unsupervised administration and about nine I think over ninety it's been a while since I looked at it but over 90 percent of all administrations are unsupervised.

Oh so it's the most common?

>> It is it's quicker and there's less paperwork as far court's concerned obviously to do that.

But still the actions of what the personal representative has to do and what a lawyer has to do are pretty much the same.

He's still got martially assets pay all the bills and make sure whoever is supposed to get the assets should be able to settle and everything so you can see the same kind of work but there's less interaction with the court.

>> Got it.

Sometimes we look at supervised if you have a family that they just do not get along so they're not going to agree right in the personal representative it takes a little heat off the personal representative if they can say I ran it by the judge he said it was fine.

>> It just it puts everybody kind of in their corner that's everybody's afraid of him.

>> They you know, people just blame stuff on him.

You you're making me feel bad.

>> He's not you have a couple of more calls coming in and I want to make sure we get to all of our viewers that we can this evening.

>> Julian, you're on the line.

What is your question this evening if the state takes the money because errors don't come forth initially but then they do come forth later on, can they still get the inheritance from the state?

>> Good question.

OK, do you know the answer to that?

>> Well I I think I do and that at first of all it won't go to the state for a fairly long period of time.

It actually is held by the clerk of the court for a period of time.

I think it's five years OK and so there's five years for those heirs to come forward after that it does go to the state and then it's held by the state for a period of time in that unclaimed property and we've heard of Indiana unclaimed.

>> Oh yeah.

And they publicized that held there for a period of time.

But at it at a certain point that money does go to the it's either the education fund or the general fund of the state of Indiana and by that time it would be too late but quite a few years have to pass by.

So the heirs would I mean you're going to have seven to ten years anyway after the person passed away, OK?

>> And now who would not agree that when you see that big publicized unclaimed funds don't you look for your name surprised that every so often I mean there might who knows there might be a you're on the phone with us this evening as well and how can we help you?

>> Well, hello there.

I had question I work for an investment firm but we Todds and we also do beneficiary's and I raise but my question is I got into the to the show just like ten minutes to go so I don't know if you talked about this but is a handwritten Well would be if it's notarized by three people or something would that be as legal as a regular well written by an attorney because I've had too well written by attorneys that I want to change my last one and I would like to know if I could do a handwritten well from you know, denoting everything that I want to give to who.

>> I think that is a Heidi question.

She's our attorney here.

So Heidi, let buy my answer to you would be it's very scary to do a handwritten will whenever because because they may or may not work.

>> There's certain times that I think if you're on your deathbed or something it works.

>> I always have to look that statute up and see exactly what criteria have to be met for a little oh how about I would if I would print off the Indiana well that's the legal document online.

>> Would that work as well?

Well that is I haven't reviewed it.

I don't know if it's a form that meets our requirements kind of the key thing in Indiana is that you sign it.

It's witnessed by two people and you have to have these certain clauses in there that that prove that the witnesses were there and you were present .

So you just have to make sure it meets Indiana's requirements and sometimes I find that these wills that people do try to create that way or pull off the off online, they don't work.

>> So would you say that to me?

I would say that most of the forms work but that's a very they work.

>> They'll get admitted to probate there they have the two witnesses.

We can sometimes get them approved by extrinsic evidence.

That's a big word we won't have time to go it all without means and they can become a legal document.

But whether they actually accomplish what you want to accomplish, that's a totally different subject and that's where I always see the problems with those handwritten wills that somebody does themselves is they're usually doing things trying to do things that Wills can't or can't do or they're not done or they're unclear.

They're ambiguous.

They're not written by a lawyer.

Remember that if a lawyer writes a lawyer's advice is warranted.

I mean they they have to do it right or else it's so so you get that sort of guarantee that you don't have if you do it yourself.

And I think Heidi would agree writing a will is one of the most common legal things people do and it's not the most expensive not by a long shot.

It's pretty inexpensive but you can have everybody does.

>> I know you know well I think to begin with a lot of people think well I'll do that when I'm 70.

>> Well, I mean maybe you're you know, a young person with a young family and who knows what might happen any day especially the young family because you designate someone to serve as guardian of your children and that is the most significant thing you can do to make sure that in a in the case of an untimely death of parents that somebody started to take care of your kids and that you've made your wishes known.

>> OK, Heidi.

So people, you know, doing well first of all and name their power of attorney and their health care representative.

>> Do they end up getting involved in any way in probate or no?

>> Well, the person that you've named is your personal representative is the person who actually carries out the probate all right.

>> And would go before the judge and present.

They don't really have to go but oh, OK. >> Through through the reporting.

Yeah, OK. >> They're the ones that pay the bills in that kind of thing and take care of all the finances and try to get everything settled.

>> OK, so what if the family does not agree with the PR or personal representative judge.

>> Well if they think the PR I mean you could disagree with them all day long but you they have to be doing something that they're not supposed to be doing OK consistent with the law they may not like it.

They may not like what was in the will but that's his job to carry out what was written in that well and that's what they're going to do.

But if they think the PR person or representative the executor also another term that's used is not doing their job correctly, then they can make that known to the to the court and there's a process whereby they can bring those issues before me or some other judge to make a determination as whether the personal representative is doing the job properly.

>> How do we know Heidi, say that you know, you're trying to get the estate all settled and whatever is this followed up in any way legally to make sure that what someone said in their will was carried out correctly ?

So I mean an heir to an estate is entitled to review the will the personal represented of has to give them an inventory of everything that's in the estate OK and then has to give them an accounting of what bills were paid, what income came into the estate where it was distributed and that's a good check that they can use to review to to see if they think things were in order is so complicated that that's in an unsupervised estate in a supervised state estate.

It's it's also the court is reviewing that.

OK, so the heirs still are going to review it in a supervised state.

They have the opportunity to see the accounting and see the I disagree or I don't think they should have made that expenditure things like that so they can balance.

So the court also looks at those things in a supervised estate that's part of our job for that see what difficult jobs they have.

>> I don't know.

I admire you and that you've done this for thirty six years.

>> It's amazing.

How long have you been practicing law?

Twenty eight.

Oh well see I wonder we have all the answers we have a lot of expertize.

>> Well we want to thank all of you for joining us this evening and for the phone calls you've made to us here.

We hope we'll be giving you some helpful information next week.

We've got some good topics coming up.

We're going to be talking about Medicare.

It's that time of the year when maybe you need to think about making some changes or are there really Medicare changes already in place?

We'll have Greg MacDonald here to give you answers on that.

Meanwhile, stay healthy, stay safe.

We'll see you next week