*HB1208.1*
January 13, 2022
HOUSE BILL No. 1208
_____
DIGEST OF HB 1208 (Updated January 12, 2022 3:39 pm - DI 140)
Citations Affected: IC 16-36; IC 29-1; IC 29-3; IC 30-4; IC 30-5.
Synopsis: Various probate and trust matters. In one instance in the law
on health care advance directives, changes the word "testator" to
"declarant". Amends several provisions relating to the filing of notices
to make those provisions consistent with Rules of Trial Procedure 86
and 87 concerning electronic filing. Resolves inconsistencies in two
sections of the chapter on dispensing with administration so that those
sections authorize a fiduciary to distribute and disburse the estate assets
before filing a closing statement. Authorizes the appointment of a
special administrator under certain circumstances and establishes a
procedure for the appointment of a special administrator for the
purpose of pursuing a claim for a decedent's wrongful death. In a
section concerning the filing of an electronic will, replaces an incorrect
reference with a reference to the Rules on Access to Court Records.
Provides that a video or audio recording of a principal who executes a
power of attorney may be admissible as evidence of matters relevant to
the validity or enforceability of the power of attorney. Provides that any
objection to a final account and petition for distribution of a decedent's
estate must be filed at least 14 days before the hearing date. Eliminates
references to a trustee "docketing" a trust and identifies permissible
methods for the filing of a copy of a trust instrument with a court.
Amends two definitions of "electronic power of attorney" to provide
that an electronic power of attorney may be signed in the presence of
witnesses instead of being notarized. Makes technical corrections. (The
introduced version of this bill was prepared by the probate code study
commission.)
Effective: July 1, 2022.
Young J
January 6, 2022, read first time and referred to Committee on Judiciary.
January 13, 2022, reported — Do Pass.
HB 1208—LS 6175/DI 55 January 13, 2022
Second Regular Session of the 122nd General Assembly (2022)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2021 Regular Session of the General Assembly.
HOUSE BILL No. 1208
A BILL FOR AN ACT to amend the Indiana Code concerning
probate.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 16-36-7-19, AS ADDED BY P.L.50-2021,
2 SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2022]: Sec. 19. (a) As used in this chapter and with respect to
4 interactions between a declarant and a witness who signs or
5 participates in the signing of an advance directive or other document
6 under this chapter, "presence", "present", and "to be present" means
7 that throughout the process of signing and witnessing the advance
8 directive or other document the following must occur:
9 (1) The declarant and the witness are:
10 (A) directly present with each other in the same physical
11 space;
12 (B) able to interact with each other in real time through the use
13 of any audiovisual technology now known or later developed;
14 or
15 (C) able to speak to and hear each other in real time through
16 telephonic interaction when:
17 (i) the identity of the declarant is personally known to the
HB 1208—LS 6175/DI 55 2
1 witness;
2 (ii) the witness is able to view a government issued,
3 photographic identification of the declarant; or
4 (iii) the witness is able to ask any question of the declarant
5 that authenticates the identity of the declarant and
6 establishes the capacity and sound mind of the declarant to
7 the satisfaction of the witness.
8 (2) The witnesses are able to positively identify the declarant by
9 viewing a government issued, photographic identification of the
10 declarant, or by receiving accurate answers from the declarant
11 that authenticate the identity of the declarant and establish the
12 capacity and sound mind of the declarant to the satisfaction of the
13 witness.
14 (3) Each witness is able to interact with the declarant and each
15 other witness, if any, by observing:
16 (A) the declarant's expression of intent to execute an advance
17 directive or other document under this chapter;
18 (B) the declarant's actions in executing or directing the
19 execution of the advance directive or other document under
20 this chapter; and
21 (C) the actions of each other witness in signing the advance
22 directive or other document.
23 The requirements of subdivisions (2) and (3) are satisfied even if the
24 declarant and one (1) or all witnesses use technology to assist with one
25 (1) or more of the capabilities of hearing, eyesight, or speech to
26 compensate for impairments of any one (1) or more of those
27 capabilities.
28 (b) As used in this chapter and with respect to interactions between
29 a declarant and a notarial officer who signs or participates in the
30 signing of an advance directive or other document under this chapter,
31 "presence", "present", and "to be present" means that throughout the
32 process of signing, acknowledging, and notarizing the advance
33 directive or other document the following must occur:
34 (1) The declarant and the notarial officer are:
35 (A) directly present with each other in the same physical
36 space; or
37 (B) able to interact with each other in real time through the use
38 of any audiovisual technology, now known or later developed,
39 whose use complies with IC 33-42.
40 (2) The notarial officer is able to positively identify the declarant
41 by using an identity proofing method permitted under
42 IC 33-42-0.5-16.
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1 (3) Each witness or the notarial officer is able to interact with the
2 declarant and each other witness, if any, by observing the
3 declarant's:
4 (A) expression of intent to execute an advance directive or
5 other document under this chapter; and
6 (B) actions in executing or directing the execution of the
7 advance directive or other document under this chapter.
8 If the declarant appears before the notarial officer in a manner that
9 satisfies the definitions of "appear" and "appearance" as defined in
10 IC 33-42-0.5, IC 33-42-0.5-3, then the declarant and the notarial
11 officer satisfy the presence requirement described in this chapter. The
12 requirements specified in subdivisions (2) and (3) are satisfied even if
13 the testator declarant and the notarial officer use technology to assist
14 with one (1) or more of the capabilities of hearing, eyesight, or speech
15 to compensate for impairments of any one (1) or more of those
16 capabilities.
17 SECTION 2. IC 29-1-1-12, AS AMENDED BY P.L.95-2007,
18 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
19 JULY 1, 2022]: Sec. 12. (a) Unless waived and except as otherwise
20 provided by law, all notices required by this article to be served upon
21 any person shall be served as the court shall direct by rule or in a
22 particular case, by:
23 (1) delivering a copy of the notice to the person or by leaving a
24 copy of the notice at the person's last and usual place of residence,
25 at least ten (10) days before the hearing, if the person is a resident
26 of the state of Indiana;
27 (2) publication, if the person is a nonresident of the state of
28 Indiana or if the person's residence is unknown, once each week
29 for three (3) weeks consecutively in a newspaper printed and
30 circulating in the county where the court is held, the first day of
31 publication to be at least thirty (30) days prior to the date set for
32 hearing; or in case there is no newspaper printed in the county,
33 then in a newspaper circulating in the county where the
34 proceeding is pending, and designated by the judge or clerk;
35 (3) first class postage prepaid mail addressed to the person
36 located in the United States, at the person's address stated in the
37 petition for the hearing, to be posted by depositing in any United
38 States post office in this state at least fourteen (14) days prior to
39 the date set for hearing in the notice;
40 (4) personal service on nonresidents to be served by any officer
41 authorized to serve process in the county of the nonresident,
42 which notice shall be served at least fourteen (14) days prior to
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1 the date set for hearing in such notice; or
2 (5) any combination of two (2) or more of the above.
3 (b) In all cases where service by publication is ordered but personal
4 service or service by registered mail is not ordered, all persons directed
5 by the provisions of this article, or by order of the court, to be notified,
6 whose names and addresses are known or can by reasonable diligence
7 be ascertained by the party charged with the duty of giving notice, shall
8 in addition to the published notice required by order, be served by a
9 written notice by United States first class postage prepaid mail at least
10 fourteen (14) days prior to the date set for hearing in the notice.
11 (c) The personal representative or party charged with the duty of
12 giving notice shall furnish the clerk with sufficient copies of the notice,
13 prepared for mailing, and the clerk shall mail the notice.
14 SECTION 3. IC 29-1-1-13 IS AMENDED TO READ AS
15 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 13. Service by
16 publication and by mail shall be made by the clerk at the instance of the
17 party who requires such service to be made. Personal service may be
18 made by any competent person unless otherwise directed by the court
19 or the provisions of this article.
20 SECTION 4. IC 29-1-1-16 IS AMENDED TO READ AS
21 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 16. Proof of service in
22 all cases requiring notice, whether by publication, mailing or otherwise,
23 shall be filed before the hearing. Service made by a private person shall
24 be proved by the affidavit of the person; service made by the clerk or
25 other an official shall be proved by certificate or return of service.
26 SECTION 5. IC 29-1-3-3 IS AMENDED TO READ AS FOLLOWS
27 [EFFECTIVE JULY 1, 2022]: Sec. 3. (a) The election to take the share
28 hereinbefore provided shall be in writing, signed and acknowledged by
29 the surviving spouse or by the guardian of his the estate and shall be
30 filed in the office of the clerk of the court. It may be in the following
31 form:
32 I, A.B., surviving wife (or husband) of C.D., late of the county of
33 ____________ and state of _______, do hereby elect to take my legal
34 share in the estate of the said C.D. and I do hereby renounce provisions
35 in the will of the said C.D. inconsistent herewith.
36 Signed,
37 (Signature)
38 (Acknowledgment)
39 (b) Said election shall be recorded by such clerk in the record of
40 wills, marginal reference being made from such record to the book and
41 page in which such will is recorded, and from the record of such will
42 to the book and page where such election is recorded.
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1 (c) The clerk shall cause a copy of said election to be served upon
2 the personal representative and his the personal representative's
3 attorney of record by United States through the E-filing System of the
4 Indiana Courts or by first class postage prepaid mail addressed to
5 such persons at their respective addresses as shown by the petition for
6 probate of will and appointment of personal representative.
7 SECTION 6. IC 29-1-7-7, AS AMENDED BY P.L.231-2019,
8 SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
9 JULY 1, 2022]: Sec. 7. (a) As soon as letters testamentary or of
10 administration, general or special, supervised or unsupervised, have
11 been issued, the clerk of the court shall publish notice of the estate
12 administration shall be published.
13 (b) The notice required under subsection (a) shall be published in
14 a newspaper of general circulation, printed in the English language and
15 published in the county where the court is located, once each week for
16 two (2) consecutive weeks. A copy of the notice, with proof of
17 publication, shall be filed with the clerk of the court as a part of the
18 administration of the estate within thirty (30) days after the publication.
19 If no newspaper is published in the county, the notice shall be
20 published in a newspaper published in an adjacent county.
21 (c) The notice required under subsection (a) shall be served
22 through the E-filing System of the Indiana Courts or by first class
23 postage prepaid mail on each heir, devisee, legatee, and known creditor
24 whose name and address is set forth in the petition for probate or
25 letters, except as otherwise ordered by the court. The personal
26 representative shall furnish sufficient copies of the notice, prepared for
27 mailing, and the clerk of the court shall mail the notice upon the
28 issuance of letters.
29 (d) The personal representative or the personal representative's
30 agent shall serve notice on each creditor of the decedent:
31 (1) whose name is not set forth in the petition for probate or
32 letters under subsection (c);
33 (2) who is known or reasonably ascertainable within one (1)
34 month after the first publication of notice under subsection (a);
35 and
36 (3) whose claim has not been paid or settled by the personal
37 representative.
38 The notice may be served by mail or any other means reasonably
39 calculated to ensure actual receipt of the notice by a creditor. The unit
40 is a reasonably ascertainable creditor under this section if the decedent
41 was at least fifty-five (55) years of age at the time of death and dies on
42 or after June 30, 2018. Notice served under this section by mail to the
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1 unit at the unit's address is reasonably calculated to ensure receipt of
2 the notice by the unit.
3 (e) Notice under subsection (d) shall be served within one (1) month
4 after the first publication of notice under subsection (a) or as soon as
5 possible after the elapse of one (1) month. If the personal representative
6 or the personal representative's agent fails to give notice to a known or
7 reasonably ascertainable creditor of the decedent under subsection (d)
8 within one (1) month after the first publication of notice under
9 subsection (a), the period during which the creditor may submit a claim
10 against the estate includes an additional period ending two (2) months
11 after the date notice is given to the creditor under subsection (d).
12 However, a claim filed under IC 29-1-14-1(a) more than nine (9)
13 months after the death of the decedent is barred.
14 (f) A schedule of creditors that received notice under subsection (d)
15 shall be delivered to the clerk of the court as soon as possible after
16 notice is given.
17 (g) The giving of notice to a creditor or the listing of a creditor on
18 the schedule delivered to the clerk of the court does not constitute an
19 admission by the personal representative that the creditor has an
20 allowable claim against the estate.
21 (h) If any person entitled to receive notice under this section is
22 under a legal disability, the notice may be served upon or waived by the
23 person's natural or legal guardian or by the person who has care and
24 custody of the person.
25 (i) The notice shall read substantially as follows:
26 NOTICE OF ADMINISTRATION
27 In the _____________ Court of ______________ County, Indiana.
28 Notice is hereby given that _________ was, on the ____ day of
29 ______, 20 __, appointed personal representative of the estate of
30 _________, deceased, who died on the ___ day of ________, 20 __.
31 All persons who have claims against this estate, whether or not now
32 due, must file the claim in the office of the clerk of this court within
33 three (3) months from the date of the first publication of this notice, or
34 within nine (9) months after the decedent's death, whichever is earlier,
35 or the claims will be forever barred.
36 Dated at ________, Indiana, this ___ day of ______, 20 __.
37 _______________________________
38 CLERK OF THE _________ COURT
39 FOR _______ COUNTY, INDIANA
40 Personal Representative's Name or Agent's Name
41 Address
42 Phone Number
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1 Email Address
2 SECTION 7. IC 29-1-7.5-1 IS AMENDED TO READ AS
3 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 1. (a) Upon the filing
4 of a petition under IC 29-1-7-5, the following persons may at any time
5 petition the court for authority to have a decedent's estate administered
6 without court supervision:
7 (1) The decedent's heirs at law if the decedent dies intestate.
8 (2) The legatees and devisees under the decedent's will.
9 (3) The personal representative.
10 (b) The clerk of the court personal representative or the personal
11 representative's agent shall give notice of the filing of a petition for
12 unsupervised administration to creditors of the decedent as provided in
13 IC 29-1-7-7(c) and IC 29-1-7-7(d).
14 SECTION 8. IC 29-1-7.5-1.5, AS AMENDED BY P.L.143-2009,
15 SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
16 JULY 1, 2022]: Sec. 1.5. (a) As soon as letters testamentary or letters
17 of administration have been issued, the clerk of the court personal
18 representative or the personal representative's agent shall serve by
19 mail notice of the petition on each of the decedent's heirs at law, if the
20 decedent died intestate, or the devisees and legatees under the
21 decedent's will. The mailing of notice under this subsection may not be
22 waived.
23 (b) The notice required under subsection (a) shall read substantially
24 as follows:
25 NOTICE OF UNSUPERVISED ADMINISTRATION TO BE
26 MAILED TO A DISTRIBUTEE
27 In the _________ Court of _________ County, Indiana.
28 Notice is hereby given that ____________, on the _____ day of
29 ________, 20__, was appointed as the personal representative of the
30 estate of ______________, who died on the ____ day of __________,
31 20__, {leaving a will} {not leaving a will}. The estate will be
32 administered without court supervision.
33 As an heir, a devisee, or a legatee of the estate (a "distributee"), you
34 are advised of the following information:
35 (1) The personal representative has the authority to take actions
36 concerning the estate without first consulting you.
37 (2) The personal representative may be serving without posting a
38 bond with the court. You have the right to petition the court to set
39 a bond for your protection. You also have the right to petition the
40 court to remove a corporate personal representative not later than
41 thirty (30) days after this notice if the ownership or control of the
42 corporate personal representative has changed since the execution
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1 of the decedent's will.
2 (3) The personal representative will not obtain court approval of
3 any action, including the amount of attorney's or personal
4 representative's fees.
5 (4) Within two (2) months after the appointment of the personal
6 representative, the personal representative must prepare an
7 inventory of the estate's assets. You have the right to request and
8 receive a copy of this inventory from the personal representative.
9 However, if you do not participate in the residue of the estate and
10 receive only a specific bequest in money or personal property that
11 will be paid, you are entitled only to the information concerning
12 your specific bequest and not to the assets of the estate as a
13 whole.
14 (5) The personal representative is required to furnish you with a
15 copy of the closing statement that will be filed with the court, and,
16 if your interests are affected, with a full account in writing of the
17 administration of the estate.
18 (6) You must file an objection to the closing statement within
19 three (3) months after the closing statement is filed with the court
20 if you want the court to consider your objection.
21 (7) If an objection to the closing statement is not filed with the
22 court within three (3) months after the filing of the closing
23 statement, the estate is closed and the court does not have a duty
24 to audit or make an inquiry.
25 IF, AT ANY TIME BEFORE THE ESTATE IS CLOSED, YOU
26 HAVE REASON TO BELIEVE THAT THE ADMINISTRATION OF
27 THE ESTATE SHOULD BE SUPERVISED BY THE COURT, YOU
28 HAVE THE RIGHT TO PETITION THE COURT FOR SUPERVISED
29 ADMINISTRATION.
30 IF YOU DO NOT UNDERSTAND THIS NOTICE, YOU SHOULD
31 ASK YOUR ATTORNEY TO EXPLAIN IT TO YOU.
32 The personal representative's address is ____________, and
33 telephone number is ___________. The attorney for the personal
34 representative is _______________, whose address is
35 _______________ and telephone number is _________.
36 Dated at _____________, Indiana, this _____ day of
37 _______________, 20__.
38 CLERK OF THE _______________ COURT
39 Personal Representative's Name or Agent's Name
40 Address
41 Phone Number
42 Email Address
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1 SECTION 9. IC 29-1-8-3, AS AMENDED BY P.L.56-2020,
2 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2022]: Sec. 3. (a) As used in this section, "fiduciary" means:
4 (1) the personal representative of an unsupervised estate; or
5 (2) a person appointed by a court under this title to act on behalf
6 of the decedent or the decedent's distributees.
7 (b) Except as otherwise provided in this section, if the value of a
8 decedent's gross probate estate, less liens and encumbrances, does not
9 exceed the sum of:
10 (1) an amount equal to:
11 (A) twenty-five thousand dollars ($25,000), for the estate of an
12 individual who dies before July 1, 2006; and
13 (B) fifty thousand dollars ($50,000), for the estate of an
14 individual who dies after June 30, 2006;
15 (2) the costs and expenses of administration; and
16 (3) reasonable funeral expenses;
17 the fiduciary, without giving notice to creditors, may file disburse and
18 distribute the estate to the persons entitled to it, followed by the
19 filing of a closing statement, as provided in section 4 of this chapter
20 and disburse and distribute the estate to the persons entitled to it, as
21 provided in section 4 of this chapter.
22 (c) If an estate described in subsection (a) includes real property, an
23 affidavit may be recorded in the office of the recorder in the county in
24 which the real property is located. The affidavit must contain the
25 following:
26 (1) The legal description of the real property.
27 (2) The following statements:
28 (A) If the individual dies after June 30, 2006, the following
29 statement: "It appears that the decedent's gross probate estate,
30 less liens and encumbrances, does not exceed the sum of the
31 following: fifty thousand dollars ($50,000), the costs and
32 expenses of administration, and reasonable funeral expenses.".
33 (B) If the individual dies before July 1, 2006, the following
34 statement: "It appears that the decedent's gross probate estate,
35 less liens and encumbrances, does not exceed the sum of the
36 following: twenty-five thousand dollars ($25,000), the costs
37 and expenses of administration, and reasonable funeral
38 expenses.".
39 (3) The name of each person entitled to at least a part interest in
40 the real property as a result of a decedent's death, the share to
41 which each person is entitled, and whether the share is a divided
42 or undivided interest.
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1 (4) A statement which explains how each person's share has been
2 determined.
3 SECTION 10. IC 29-1-8-4, AS AMENDED BY P.L.56-2020,
4 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
5 JULY 1, 2022]: Sec. 4. (a) As used in this section, "fiduciary" means:
6 (1) the personal representative of an unsupervised estate; or
7 (2) a person appointed by a court under this title to act on behalf
8 of the decedent or the decedent's distributees.
9 (b) Unless prohibited by order of the court and except for estates
10 being administered by supervised personal representatives, a fiduciary
11 may close an estate administered under the summary procedures of
12 section 3 of this chapter by disbursing and distributing the estate
13 assets to the distributees and other persons entitled to those assets,
14 and by filing with the court, at any time after disbursement and
15 distribution of the estate, a verified statement stating that:
16 (1) to the best knowledge of the fiduciary, the value of the gross
17 probate estate, less liens and encumbrances, did not exceed the
18 sum of:
19 (A) twenty-five thousand dollars ($25,000), for the estate of an
20 individual who dies before July 1, 2006, and fifty thousand
21 dollars ($50,000), for the estate of an individual who dies after
22 June 30, 2006;
23 (B) the costs and expenses of administration; and
24 (C) reasonable funeral expenses;
25 (2) the fiduciary has fully administered the estate by disbursing
26 and distributing it to the persons entitled to it; and
27 (3) the fiduciary has sent a copy of the closing statement to all
28 distributees of the estate and to all known creditors or other
29 claimants of whom the fiduciary is aware and has furnished a full
30 accounting in writing of the administration to the distributees
31 whose interests are affected.
32 (c) If no actions, claims, objections, or proceedings involving the
33 fiduciary are filed in the court within two (2) months after the closing
34 statement is filed, the fiduciary may immediately disburse and
35 distribute the estate free from claims to the persons entitled to the
36 disbursement and distribution. After disbursing and distributing an
37 estate, the fiduciary must file a report in the court of the disbursement
38 and distribution. the closing statement filed under this section has
39 the same effect as one filed under IC 29-1-7.5-4, and the
40 appointment of the personal representative or the duties of the
41 fiduciary, as applicable, shall terminate. upon the filing of the report.
42 (d) A closing statement filed under this section has the same effect
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1 as one (1) filed under IC 29-1-7.5-4.
2 (e) (d) A copy of any affidavit recorded under section 3(c) of this
3 chapter must be attached to the closing statement filed under this
4 section.
5 SECTION 11. IC 29-1-10-15 IS AMENDED TO READ AS
6 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 15. (a) A special
7 administrator may be appointed by the court if:
8 (a) (1) from any cause, delay is necessarily occasioned in granting
9 letters; or
10 (b) (2) before the expiration of the time allowed by law for issuing
11 letters, any competent person shall file his an affidavit with the
12 clerk stating that anyone is intermeddling with the estate or that
13 there is no one having authority to take care of the same; or
14 (c) (3) if any person shall have died testate and objections to the
15 probate of his the person's will shall have been filed as provided
16 by law;
17 (4) the court determines that the appointment is necessary
18 under IC 29-1-13-16; or
19 (5) no personal representative has been appointed and the
20 appointment is sought for the sole purpose of pursuing
21 damages for a decedent's wrongful death after notice and
22 hearing as provided in section 15.5 of this chapter.
23 (b) The appointment of a special administrator may be for a
24 specified time to perform duties respecting specific property, or to
25 perform particular acts as shall be stated in the order of appointment.
26 The fact that a person has been designated as executor in a decedent's
27 will shall not disqualify him the person from being appointed special
28 administrator of such decedent's estate or any portion thereof.
29 (c) The special administrator shall make such reports as the court
30 shall direct, and shall account to the court upon the termination of his
31 the special administrator's authority. Otherwise, and except as the
32 provisions of this article by terms apply to general personal
33 representatives, and except as ordered by the court, the law and
34 procedure relating to personal representatives in this article shall apply
35 to special administrators. The order appointing a special administrator
36 shall not be appealable.
37 SECTION 12. IC 29-1-10-15.5 IS ADDED TO THE INDIANA
38 CODE AS A NEW SECTION TO READ AS FOLLOWS
39 [EFFECTIVE JULY 1, 2022]: Sec. 15.5. (a) Upon the filing of a
40 petition for the appointment of a special administrator for the sole
41 purpose of pursuing a claim for the decedent's wrongful death,
42 hearing and notice shall be had as set forth in this section.
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1 (b) The court or clerk shall set a date by which all objections or
2 petitions for an alternate appointment must be filed in writing, and
3 the clerk shall give notice to all interested persons that a petition
4 for appointment of a special administrator to pursue a claim for
5 decedent's wrongful death has been filed and will be acted upon by
6 the court on the date set unless written objections or requests for
7 an alternate special administrator are presented to the court on or
8 before that date.
9 (c) In the petition for appointment as special administrator, the
10 petitioner shall identify the names and addresses of all persons
11 potentially interested in the wrongful death claim whose names and
12 addresses are known to the petitioner or may by reasonable
13 diligence be ascertained. The petitioner shall provide sufficient
14 copies of the notice described in subsection (b), prepared for
15 mailing to the clerk. The clerk shall send a copy of the notice by
16 ordinary mail to each of such interested persons at least thirty (30)
17 days prior to the hearing date. Any interested person may waive
18 the service by mail of this notice. Neither a notice nor a hearing is
19 required if all persons entitled to notice waive in writing the service
20 of notice by mail and consent to the appointment of the special
21 administrator without a hearing.
22 (d) If a person interested in the wrongful death claim is
23 unknown or cannot be located, the petitioner may give notice by
24 one (1) publication in a newspaper of general circulation, published
25 in the county in which the petition is pending.
26 (e) The deadline for filing an objection or request for an
27 alternate special administrator is fourteen (14) days before the
28 hearing date. The notice described in subsections (b) and (c) shall
29 state that objections or a request for an alternate special
30 administrator must be filed in writing at least fourteen (14) days
31 before the hearing date.
32 SECTION 13. IC 29-1-16-6 IS AMENDED TO READ AS
33 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 6. (a) Upon the filing
34 of any account in a decedent's estate, hearing and notice thereof shall
35 be had as set forth in this section.
36 (b) If the account is for final settlement, the court or clerk shall set
37 a date by which all objections to such final account and petition for
38 distribution must be filed in writing. and The date shall be at least
39 fourteen (14) days before the hearing date. clerk The personal
40 representative or the personal representative's agent shall give
41 notice to all persons:
42 (1) who are entitled to share in the final distribution of said
HB 1208—LS 6175/DI 55 13
1 estate; and
2 (2) whose names and addresses are known to the personal
3 representative or may by reasonable diligence be ascertained
4 as set forth in the personal representative's petition for
5 distribution;
6 that a final report has been filed and will be acted upon by the court on
7 the date set unless written objections are presented to the court on or
8 at least fourteen (14) days before that the hearing date. The personal
9 representative shall at the time said account is filed furnish to the clerk
10 the names and addresses of all persons entitled to share in the
11 distribution of the residue of said estate, whose names and addresses
12 are known to the personal representative or may by reasonable
13 diligence be ascertained as set forth in the personal representative's
14 petition for distribution, together with sufficient copies of said notice
15 prepared for mailing. The clerk personal representative or the
16 personal representative's agent shall send a copy of said notice by
17 ordinary through the E-filing System of the Indiana Courts or by
18 first class postage prepaid mail to each of said parties at least
19 fourteen (14) thirty (30) days prior to such the hearing date. Said
20 parties or their attorney of record may waive the service by mail of this
21 notice and where there is an attorney of record, service upon said
22 attorney shall be sufficient as to the parties represented by said
23 attorney. Neither a notice nor a hearing is required if all persons
24 entitled to share in the final distribution of the estate waive the service
25 of notice by mail and consent to the final account and petition for
26 distribution without a hearing.
27 (c) If a person entitled to share in the distribution of the residue of
28 the estate is unknown or cannot be located, the personal representative
29 may give notice by one (1) publication in a newspaper of general
30 circulation, published in the county in which the administration is
31 pending. The deadline for filing an objection is fourteen (14) days
32 before the hearing date. The notice shall state that objections to the
33 final account and petition for distribution must be filed in writing at
34 least fourteen (14) days before the hearing date.
35 (d) If the account is intermediate, but the personal representative has
36 therein petitioned the court that said account be made final as to the
37 matters and things reported in said account, the same procedure as to
38 hearing and notice shall be followed as in the case of a final account.
39 (e) If the account is intermediate and the personal representative
40 makes no request that said account may be made final as to the matters
41 and things reported in said account, the court may order such notice as
42 the court deems necessary or approve the same ex parte and without
HB 1208—LS 6175/DI 55 14
1 notice. Every such intermediate account approved without notice shall
2 be subject to review by the court at any time and shall not become final
3 until the personal representative's account in final settlement is
4 approved by the court.
5 SECTION 14. IC 29-1-16-7 IS AMENDED TO READ AS
6 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 7. At any time prior to
7 the hearing on an account of a personal representative, As stated in
8 section 6 of this chapter, any interested person may file written
9 objections to any item or omission in the account. All such objections
10 shall be specific and shall indicate the modification desired.
11 SECTION 15. IC 29-1-17-15.1, AS AMENDED BY P.L.136-2018,
12 SECTION 218, IS AMENDED TO READ AS FOLLOWS
13 [EFFECTIVE JULY 1, 2022]: Sec. 15.1. (a) Whenever any person has
14 died leaving property or any interest in property and no general
15 administration has been commenced on the person's estate in this state,
16 nor has any will been offered for probate in this state, within five (5)
17 months after the person's death, any person claiming an interest in such
18 property as heir or through an heir may file a petition in any court
19 which would be of proper venue for the administration of such
20 decedent's estate, to determine the heirs of said decedent and their
21 respective interests as heirs in the estate.
22 (b) The petition shall state:
23 (1) The name, age, domicile and date of death of the decedent;
24 (2) The names, ages and residence addresses of the heirs, so far
25 as known or can with reasonable diligence be ascertained;
26 (3) The names and residence addresses of any persons claiming
27 any interest in such property through an heir, so far as known or
28 can by reasonable diligence be ascertained;
29 (4) A particular description of the property with respect to which
30 such determination is sought;
31 (5) The net value of the estate.
32 (c) Upon the filing of the petition, the court shall fix the time for the
33 hearing, thereof, notice of which shall be given to:
34 (1) All persons known or believed to claim any interest in the
35 property as heir or through an heir of the decedent;
36 (2) All persons who may at the date of the filing of the petition be
37 shown by the records of conveyances of the county in which any
38 real property described in such petition is located to claim any
39 interest therein through the heirs of the decedent; and
40 (3) Any unknown heirs of the decedent.
41 Such notice shall be given by publication and, in addition personal
42 notice through the E-filing System of the Indiana Courts or by
HB 1208—LS 6175/DI 55 15
1 registered first class postage prepaid mail, shall be given to every
2 such person whose address is known to the petitioner. Upon
3 satisfactory proofs the court shall make a decree determining the heirs
4 of said decedent and their respective interests as heirs in said property.
5 (d) A certified copy of the decree shall be recorded at the expense
6 of the petitioner in each county in which any real property described in
7 the decree is situated except the county in which the decree is entered,
8 and shall be conclusive evidence of the facts determined in the decree
9 as against all parties to the proceedings.
10 SECTION 16. IC 29-1-21-16, AS AMENDED BY P.L.185-2021,
11 SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
12 JULY 1, 2022]: Sec. 16. (a) As used in this section and for the purpose
13 of offering or submitting an electronic will in probate under IC 29-1-7,
14 the "filing of an electronic will" means the electronic filing of a
15 complete converted copy of the associated electronic will.
16 (b) When filing an electronic will, the filing of any accompanying
17 document integrity evidence or identity verification is not required
18 unless explicitly required by the court.
19 (c) If a person files an electronic will:
20 (1) for the purpose of probating the electronic will; and
21 (2) including accompanying:
22 (A) document integrity evidence;
23 (B) identity verification evidence; or
24 (C) evidence described in both clauses (A) and (B);
25 in the filing or in response to a court order under subsection (e)(2), the
26 person shall file a complete and unredacted copy of the evidence
27 described in clauses (A) and (B) as a nonpublic document under Ind.
28 Administrative Rule 9(G). Rule 5 of the Rules on Access to Court
29 Records. All personally identifying information pertaining to the
30 testator or the attesting witnesses shall be redacted in the publicly filed
31 copy.
32 (d) If an electronic will includes a self-proving clause that complies
33 with section 4(f) of this chapter, the testator's and witnesses'
34 compliance with the execution requirements shall be presumed upon
35 the filing of the electronic will with the court without the need for any
36 additional testimony or an accompanying affidavit. The presumption
37 described in this subsection may be subject to rebuttal or objection on
38 the grounds of fraud, forgery, or impersonation.
39 (e) After determining that a testator is dead and that the testator's
40 electronic will has been executed in compliance with applicable law,
41 the court may:
42 (1) enter an order, without requiring the submission of additional
HB 1208—LS 6175/DI 55 16
1 evidence, admitting the electronic will to probate as the last will
2 of the deceased testator unless objections are filed under
3 IC 29-1-7-16; or
4 (2) require the petitioner to submit additional evidence regarding:
5 (A) the proper execution of the electronic will; or
6 (B) the electronic will's freedom from unauthorized alteration
7 or tampering after its execution.
8 The court may require the submission of additional evidence under
9 subdivision (2) on the court's own motion or in response to an objection
10 filed under IC 29-1-7-16.
11 (f) The additional evidence that the court may require and rely upon
12 under subsection (e)(2) may include one (1) or more of the following:
13 (1) Readable copies of the document integrity evidence or the
14 identity verification evidence associated with the electronic will.
15 (2) All or part of the electronic record (if available) in a native or
16 computer readable form.
17 (3) A sworn or verified affidavit from:
18 (A) an attorney or other person who supervised the execution
19 of the electronic will; or
20 (B) one (1) or more of the attesting witnesses.
21 (4) An affidavit signed under section 9(b) of this chapter by a
22 person who created a complete converted copy of the electronic
23 will.
24 (5) A sworn or verified affidavit from a qualified person that:
25 (A) describes the person's training and expertise;
26 (B) describes the results of the person's forensic examination
27 of the electronic record associated with:
28 (i) the electronic will at issue; or
29 (ii) any other relevant evidence; and
30 (C) affirms that the electronic will was not altered or tampered
31 with after its execution.
32 (6) Any other evidence, including other affidavits or testimony,
33 that the court considers material or probative on the issues of
34 proper execution or unauthorized alteration or tampering.
35 (g) If the court enters an order admitting an electronic will to
36 probate after receiving additional evidence, any of the additional
37 evidence may be disputed through a will contest that is timely filed
38 under IC 29-1-7-17.
39 SECTION 17. IC 29-1-22-1, AS ADDED BY P.L.231-2019,
40 SECTION 20, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
41 JULY 1, 2022]: Sec. 1. The following terms are defined for this
42 chapter:
HB 1208—LS 6175/DI 55 17
1 (1) "Complete converted copy" means a document in any format
2 that:
3 (A) can be visually perceived in its entirety on a monitor or
4 other display device;
5 (B) can be printed; and
6 (C) contains the following:
7 (i) The text of an electronic will.
8 (ii) The respective electronic signatures of the testator and
9 attesting witnesses.
10 (iii) A readable copy of all document integrity evidence, if
11 applicable.
12 (iv) A self-proving affidavit if the electronic will is
13 self-proved.
14 (2) "Document integrity evidence" means the part of the
15 electronic will, electronic trust instrument, or electronic power of
16 attorney that:
17 (A) is created and maintained electronically;
18 (B) includes digital markers to demonstrate that the electronic
19 will, electronic trust instrument, or electronic power of
20 attorney has not been altered or tampered with after its
21 execution;
22 (C) is logically associated with the electronic will, electronic
23 trust instrument, or electronic power of attorney;
24 (D) will generate an error message, invalidate an electronic
25 signature, make the electronic record unreadable, or otherwise
26 display evidence that some alteration was made to the
27 electronic record after its execution; and
28 (E) includes the following information:
29 (i) The city, state, date, and time of the execution of the
30 electronic will, electronic trust instrument, or electronic
31 power of attorney by the testator, settlor, or principal and
32 any attesting witnesses as applicable.
33 (ii) The text of the self-proving affidavit if the document is
34 an electronic will and is self-proved.
35 (iii) The name of the testator, settlor, or principal and the
36 names of all attesting witnesses, if applicable.
37 (iv) The name and address of any person responsible for
38 signing the signature of the testator, settlor, or principal on
39 the electronic document at the direction and in the presence
40 of the testator, settlor, or principal.
41 (v) Copies of or links to the electronic signatures of the
42 testator, settlor, or principal and any attesting witnesses, if
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1 applicable.
2 (vi) A general description of the type of identity verification
3 evidence used to verify the identity of the testator, settlor, or
4 principal.
5 (vii) The content of the cryptographic hash or unique code
6 used to complete the electronic will, electronic trust
7 instrument, or electronic power of attorney and make the
8 electronic will, electronic trust instrument, or electronic
9 power of attorney tamper evident if a public key
10 infrastructure or similar secure technology was used to sign
11 or authenticate the electronic will, electronic trust
12 instrument, or electronic power of attorney and if the vendor
13 or the software for the technology makes inclusion feasible.
14 (3) "Electronic estate planning document" means:
15 (A) an electronic will;
16 (B) an electronic trust instrument;
17 (C) an electronic power of attorney; or
18 (D) any electronic document that:
19 (i) revokes; or
20 (ii) amends;
21 any document described in clauses (A) through (C).
22 (4) "Electronic power of attorney" means a power of attorney
23 created by a principal that:
24 (A) is initially created and maintained as an electronic record;
25 (B) contains the electronic signature of the principal creating
26 the power of attorney;
27 (C) contains the date and time of the electronic signature of the
28 principal creating the power of attorney; and
29 (D) is notarized. has the meaning set forth in
30 IC 30-5-11-3(8).
31 The term includes an amendment to or a restatement of the power
32 of attorney if the amendment or restatement complies with the
33 requirements described in IC 30-5-11-5.
34 (5) "Electronic record" has the meaning set forth in
35 IC 26-2-8-102(9). The term may include one (1) or more of the
36 following:
37 (A) The document integrity evidence associated with an
38 electronic will, electronic trust instrument, or electronic power
39 of attorney.
40 (B) The identity verification evidence of the testator, settlor,
41 or principal who executed the electronic will, electronic trust
42 instrument, or electronic power of attorney.
HB 1208—LS 6175/DI 55 19
1 (6) "Electronic signature" has the meaning set forth in
2 IC 26-2-8-102(10).
3 (7) "Electronic trust instrument" means a trust instrument for an
4 inter vivos trust created by a settlor or other person that:
5 (A) is initially created and maintained as an electronic record;
6 (B) contains the electronic signature of the settlor or other
7 person creating the trust; and
8 (C) contains the date and time of the electronic signature of the
9 settlor or other person creating the trust.
10 The term includes an amendment to or a restatement of a
11 revocable trust instrument when the amendment or restatement is
12 executed in accordance with the requirements of IC 30-4-1.5-6.
13 (8) "Electronic will" means the will of a testator that:
14 (A) is initially created and maintained as an electronic record;
15 (B) contains the electronic signatures of the testator and
16 attesting witnesses; and
17 (C) contains the date and time of the electronic signatures.
18 (9) "Executed" means the signing of an electronic estate planning
19 document. The term includes the use of an electronic signature.
20 (10) "Identity verification evidence" means:
21 (A) a copy of the government issued photo identification card
22 of the testator, settlor, or principal; or
23 (B) any other information that verifies the identity of the
24 testator, settlor, or principal if derived from one (1) or more of
25 the following sources:
26 (i) A knowledge based authentication method.
27 (ii) A physical device.
28 (iii) A digital certificate using a public key infrastructure.
29 (iv) A verification or authorization code sent to or used by
30 the testator, settlor, or principal.
31 (v) Biometric identification.
32 (vi) Any other commercially reasonable method for
33 verifying the identity of the testator, settlor, or principal
34 using current or future technology.
35 (11) "Index" means the electronic estate planning documents
36 index created under section 2(e) of this chapter.
37 (12) "Logically associated" means electronically connected,
38 cross-referenced, or linked in a reliable manner.
39 (13) "Registry" means the statewide electronic estate planning
40 documents registry described in section 2(a) of this chapter.
41 (14) "Sign" means valid use of a properly executed electronic
42 signature.
HB 1208—LS 6175/DI 55 20
1 (15) "Signature" means the authorized use of the name of the
2 testator, settlor, or principal to authenticate an electronic will,
3 electronic trust instrument, or electronic power of attorney. The
4 term includes an electronic signature.
5 (16) "Tamper evident" means the feature of an electronic record,
6 such as an electronic estate planning document or document
7 integrity evidence for an electronic estate planning document, that
8 will cause any alteration of or tampering with the electronic
9 record, after it is created or signed, to be perceptible to any person
10 viewing the electronic record when it is printed on paper or
11 viewed on a monitor or other display device. The term applies
12 even if the nature or specific content of the alteration is not
13 perceptible.
14 (17) "Traditional paper estate planning document" means a will,
15 codicil, trust instrument, or power of attorney that is signed on
16 paper by the testator, settlor, or principal and:
17 (A) the attesting witnesses, in the case of a will or codicil; or
18 (B) a notary public, in the case of a power of attorney.
19 SECTION 18. IC 29-3-3-3, AS AMENDED BY P.L.79-2017,
20 SECTION 74, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
21 JULY 1, 2022]: Sec. 3. Except as otherwise determined in a dissolution
22 of marriage proceeding, a custody proceeding, or in some other
23 proceeding authorized by law, including a proceeding under section 6
24 of this chapter or another proceeding under this article, and unless a
25 minor is married, the parents of the minor jointly (or the survivor if one
26 (1) parent is deceased), if not an incapacitated person, have, without
27 the appointment of a guardian, giving of bond, or order or confirmation
28 of court, the right to custody of the person of the minor and the power
29 to execute the following on behalf of the minor:
30 (1) Consent to the application of subsection (c) of Section 2032A
31 of the Internal Revenue Code, which imposes personal liability
32 for payment of the tax under that Section.
33 (2) Consent to the application of Section 6324A of the Internal
34 Revenue Code, which attaches a lien to property to secure
35 payment of taxes deferred under Section 6166 of the Internal
36 Revenue Code.
37 (3) Any other consents, waivers, or powers of attorney provided
38 for under the Internal Revenue Code.
39 (4) Waivers of notice permissible with reference to proceedings
40 under IC 29-1.
41 (5) Consents, waivers of notice, or powers of attorney under any
42 statute, including the Indiana adjusted gross income tax law (IC
HB 1208—LS 6175/DI 55 21
1 6-3).
2 (6) Consent to unsupervised administration as provided in
3 IC 29-1-7.5.
4 (7) Federal and state income tax returns.
5 (8) Consent to medical or other professional care, treatment, or
6 advice for the minor's health and welfare.
7 (9) Consent to the appointment of a special administrator for
8 the purposes of a wrongful death claim.
9 SECTION 19. IC 29-3-6-1, AS AMENDED BY P.L.178-2011,
10 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
11 JULY 1, 2022]: Sec. 1. (a) When a petition for appointment of a
12 guardian or for the issuance of a protective order is filed with the court,
13 notice of the petition and the hearing on the petition shall be given
14 through the E-filing System of the Indiana Courts or by first class
15 postage prepaid mail as follows:
16 (1) If the petition is for the appointment of a successor guardian,
17 notice shall be given unless the court, for good cause shown,
18 orders that notice is not necessary.
19 (2) If the petition is for the appointment of a temporary guardian,
20 notice shall be given as required by IC 29-3-3-4.
21 (3) If the subject of the petition is a minor, notice of the petition
22 and the hearing on the petition shall be given to the following
23 persons whose whereabouts can be determined upon reasonable
24 inquiry:
25 (A) The minor, if at least fourteen (14) years of age, unless the
26 minor has signed the petition.
27 (B) Any living parent of the minor, unless parental rights have
28 been terminated by a court order.
29 (C) Any person alleged to have had the principal care and
30 custody of the minor during the sixty (60) days preceding the
31 filing of the petition.
32 (D) Any other person that the court directs.
33 (4) If it is alleged that the person is an incapacitated person,
34 notice of the petition and the hearing on the petition shall be given
35 to the following persons whose whereabouts can be determined
36 upon reasonable inquiry:
37 (A) The alleged incapacitated person, the alleged incapacitated
38 person's spouse, and the alleged incapacitated person's adult
39 children, or if none, the alleged incapacitated person's parents.
40 (B) Any person who is serving as a guardian for, or who has
41 the care and custody of, the alleged incapacitated person.
42 (C) In case no person other than the incapacitated person is
HB 1208—LS 6175/DI 55 22
1 notified under clause (A), at least one (1) of the persons most
2 closely related by blood or marriage to the alleged
3 incapacitated person.
4 (D) Any person known to the petitioner to be serving as the
5 alleged incapacitated person's attorney-in-fact under a durable
6 power of attorney.
7 (E) Any other person that the court directs.
8 Notice is not required under this subdivision if the person to be
9 notified waives notice or appears at the hearing on the petition.
10 (b) Whenever a petition (other than one for the appointment of a
11 guardian or for the issuance of a protective order) is filed with the
12 court, notice of the petition and the hearing on the petition shall be
13 given to the following persons, unless they appear or waive notice:
14 (1) The guardian.
15 (2) Any other persons that the court directs, including the
16 following:
17 (A) Any department, bureau, agency, or political subdivision
18 of the United States or of this state that makes or awards
19 compensation, pension, insurance, or other allowance for the
20 benefit of an alleged incapacitated person.
21 (B) Any department, bureau, agency, or political subdivision
22 of this state that may be charged with the supervision, control,
23 or custody of an alleged incapacitated person.
24 SECTION 20. IC 29-3-6-2, AS AMENDED BY P.L.6-2010,
25 SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
26 JULY 1, 2022]: Sec. 2. A copy of the petition shall be attached to the
27 notice, and the notice must be in substantially the following form:
28 NOTICE
29 TO: (name and address of person receiving notice)
30 On (date of hearing) at (time of hearing) in (place of hearing) at
31 (city), Indiana, the (name and address of court) will hold a hearing to
32 determine whether a guardian should be appointed or a protective order
33 should be issued for (name of alleged incapacitated person or minor).
34 A copy of the petition requesting appointment of a guardian or for the
35 issuance of a protective order is attached to this notice.
36 At the hearing the court will determine whether (name of alleged
37 incapacitated person or minor) is an incapacitated person or minor
38 under Indiana law. This proceeding may substantially affect the rights
39 of (name of alleged incapacitated person or minor).
40 If the court finds that (name of alleged incapacitated person or
41 minor) is an incapacitated person or minor, the court at the hearing
42 shall also consider whether (name of proposed guardian, if any) should
HB 1208—LS 6175/DI 55 23
1 be appointed as guardian of (name of alleged incapacitated person or
2 minor). The court may, in its discretion, appoint some other qualified
3 person as guardian. The court may also, in its discretion, limit the
4 powers and duties of the guardian to allow (name of alleged
5 incapacitated person or minor) to retain control over certain property
6 and activities. The court may also determine whether a protective order
7 should be entered on behalf of (name of alleged incapacitated person
8 or minor).
9 (Name of alleged incapacitated person) may attend the hearing and
10 be represented by an attorney. The petition may be heard and
11 determined in the absence of (name of alleged incapacitated person) if
12 the court determines that the presence of (name of alleged
13 incapacitated person) is not required. If (name of alleged incapacitated
14 person) attends the hearing, opposes the petition, and is not represented
15 by an attorney, the court may appoint an attorney to represent (name of
16 alleged incapacitated person). The court may, where required, appoint
17 a guardian ad litem to represent (name of alleged incapacitated person
18 or minor) at the hearing.
19 The court may, on its own motion or on request of any interested
20 person, postpone the hearing to another date and time.
21 ________________________________
22 (signature of clerk of the court)
23 Petitioner's Name or Petitioner's Agent's Name
24 Address
25 Phone Number
26 Email Address
27 SECTION 21. IC 30-4-6-4 IS AMENDED TO READ AS
28 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 4. Except as provided
29 in section 7 of this chapter and IC 30-4-7, unless the terms of the trust
30 expressly direct that the court is to have continuing jurisdiction over
31 the administration of the trust:
32 (1) a trustee need not docket a trust in the file a copy of the trust
33 instrument as a part of the court's records; of the court
34 (2) nor may the court may not require a trust to be docketed;
35 copy of the trust instrument to be filed as a part of the court's
36 records; and
37 (2) (3) with respect to a decedent's estate docketed for the purpose
38 of probate or administration, which either establishes a trust or
39 makes a devise to another trust, if:
40 (A) a decedent's will establishes a trust or contains a devise
41 to a trust; and
42 (B) the will is probated under IC 29-1-7 with or without
HB 1208—LS 6175/DI 55 24
1 the appointment of a personal representative for the
2 decedent's estate;
3 the court shall have no continuing jurisdiction over the
4 administration of the trust after the will is probated or after any
5 distribution from the decedent's estate is paid or delivered to the
6 trustee.
7 SECTION 22. IC 30-4-6-7 IS AMENDED TO READ AS
8 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 7. (Docketing (Filing
9 Copy of Trust Instrument as Part of Proceeding)
10 (a) If it is necessary to the determination of any issue of law or fact
11 in a proceeding, the court may direct that a copy of the trust instrument,
12 if any, be kept in its records. In any proceeding under IC 30-2-14,
13 IC 30-2-15, or this article, any petitioner or other interested
14 person, including but not limited to a trustee or beneficiary, may
15 file a copy of the trust instrument for the trust with the court, to
16 make the trust's terms a part of the court's records. If there is a
17 dispute about whether the trust has been amended or restated or
18 about which version of a trust instrument is a valid version, two (2)
19 or more parties may file copies of different trust instruments or
20 amendments so that the court is aware of their contents.
21 (b) Permissible methods for filing a copy of the trust instrument
22 with the court under subsection (a) include filing the copy as an
23 exhibit or attachment to a petition for substantive relief under this
24 article. A separate petition to "docket" the trust or to permit the
25 filing of a copy of the trust instrument is not required.
26 (c) Upon the filing of a copy of the trust instrument with the
27 court, a presumption arises that the trust's terms have been
28 properly presented to the court. The presumption may be rebutted
29 on a showing that:
30 (1) the court lacks subject matter jurisdiction over the trust;
31 or
32 (2) the proceeding has not been filed in the proper venue
33 under section 3 of this chapter.
34 The filing of a copy of a trust instrument under this section does
35 not preclude any interested person from asserting claims or
36 defenses regarding the validity, interpretation, or administration
37 of the trust or from cross-petitioning for relief under this title.
38 (d) If:
39 (1) a trustee, beneficiary, or other interested person files a
40 proceeding under IC 30-2-14, IC 30-2-15, or this article with
41 respect to a trust; and
42 (2) a copy of the trust instrument is not filed with the court
HB 1208—LS 6175/DI 55 25
1 under subsection (a);
2 the court may order any party to file a copy of the trust instrument
3 as a condition to entertaining or hearing a petition for substantive
4 relief with respect to the trust.
5 (b) (e) The filing of the trust instrument under subsection (a) of this
6 section shall not result in continuing supervisory jurisdiction by the
7 court. Upon conclusion of the proceeding, unless otherwise ordered
8 by the court, the clerk shall remove the trust instrument shall be
9 removed from the court's records.
10 SECTION 23. IC 30-5-4-1.9, AS ADDED BY P.L.185-2021,
11 SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
12 JULY 1, 2022]: Sec. 1.9. (a) Subject to the Indiana Rules of Evidence
13 and the Indiana Rules of Trial Procedure:
14 (1) a video or audio recording of a principal captured or made
15 either before or after the execution of a power of attorney; or
16 (2) a video recording, one (1) or more photographic images, or an
17 audio recording capture made during part or all of the execution
18 of a power of attorney;
19 may be admissible as evidence under this section.
20 (b) Recordings or images described in subsection (a) may be
21 admissible as evidence of the following:
22 (1) The proper execution of a power of attorney.
23 (2) The intentions of the principal.
24 (3) The mental state or capacity of a principal.
25 (4) The authenticity of a power of attorney.
26 (5) Matters that are determined by a court to be relevant to the
27 probate validity or enforceability of a power of attorney.
28 SECTION 24. IC 30-5-11-3, AS AMENDED BY P.L.185-2021,
29 SECTION 24, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
30 JULY 1, 2022]: Sec. 3. The following terms are defined for this
31 chapter:
32 (1) "Affidavit of regularity" means an affidavit executed by a
33 custodian or other person under section 9 of this chapter with
34 respect to the electronic record for an electronic power of attorney
35 or a complete converted copy of an electronic power of attorney.
36 (2) "Complete converted copy" means a document in any format
37 that:
38 (A) can be visually viewed in its entirety on a monitor or other
39 display device;
40 (B) can be printed; and
41 (C) contains the text of an electronic power of attorney and a
42 readable copy of any associated document integrity evidence
HB 1208—LS 6175/DI 55 26
1 that may be a part of or attached to the electronic power of
2 attorney.
3 (3) "Custodian" means a person other than:
4 (A) the principal who executed the electronic power of
5 attorney;
6 (B) an attorney; or
7 (C) a person who is named in the electronic power of attorney
8 as an attorney in fact or successor attorney in fact under the
9 power of attorney.
10 (4) "Custody" means the authorized possession and control of at
11 least one (1) of the following:
12 (A) A complete copy of the electronic record for the electronic
13 power of attorney.
14 (B) A complete converted copy of the electronic power of
15 attorney if the complete electronic record has been lost or
16 destroyed or the electronic power of attorney has been
17 revoked.
18 (5) "Directed paralegal" means a nonlawyer assistant who is
19 employed, retained, or otherwise associated with a licensed
20 attorney or law firm and whose work is directly supervised by a
21 licensed attorney, as required by Rule 5.3 of the Rules of
22 Professional Conduct.
23 (6) "Document integrity evidence" means the part of the
24 electronic record for the electronic power of attorney that:
25 (A) is created and maintained electronically;
26 (B) includes digital markers showing that the electronic power
27 of attorney has not been altered after its initial execution by
28 the principal;
29 (C) is logically associated with the electronic power of
30 attorney in a tamper evident manner so that any change made
31 to the text of the electronic power of attorney after its
32 execution is visibly perceptible when the electronic record is
33 displayed or printed;
34 (D) will generate an error message, invalidate an electronic
35 signature, make the electronic record unreadable, or otherwise
36 display evidence that some alteration was made to the
37 electronic power of attorney after its execution; and
38 (E) displays the following information:
39 (i) The city and state in which, and the date and time at
40 which, the electronic power of attorney was executed by the
41 principal.
42 (ii) The name of the principal.
HB 1208—LS 6175/DI 55 27
1 (iii) The name and address of the person responsible for
2 marking the principal's signature on the electronic power of
3 attorney at the principal's direction and in the principal's
4 presence, as applicable.
5 (iv) A copy of or a link to the electronic signature of the
6 principal on the electronic power of attorney.
7 (v) A general description of the type of identity verification
8 evidence used to verify the principal's identity.
9 (vi) The content of the cryptographic hash or unique code
10 used to complete the electronic record and make the
11 electronic power of attorney tamper evident if a public key
12 infrastructure or a similar secure technology was used to
13 sign or authenticate the electronic power of attorney and if
14 the vendor or software for the technology makes inclusion
15 feasible.
16 Document integrity evidence may, but is not required to, contain
17 other information about the electronic power of attorney such as
18 a unique document number, client number, or other identifier that
19 an attorney or custodian assigns to the electronic power of
20 attorney or a link to a secure Internet web site where a complete
21 copy of the electronic power of attorney is accessible. The title,
22 heading, or label, if any, that is assigned to the document integrity
23 evidence (such as "certificate of completion", "audit trail", or
24 "audit log") is immaterial.
25 (7) "Electronic" has the meaning set forth in IC 26-2-8-102.
26 (8) "Electronic power of attorney" means a power of attorney
27 created by a principal that:
28 (A) is initially created and maintained as an electronic record;
29 (B) contains the electronic signature of the principal creating
30 the power of attorney;
31 (C) contains the date and time of the electronic signature of the
32 principal creating the power of attorney; and
33 (D) is either:
34 (i) notarized; or
35 (ii) signed in the presence of witnesses under sections
36 4(a)(2), 4.3, 4.5, 4.7, and 4.9 of this chapter.
37 The term includes an amendment to or a restatement of the power
38 of attorney if the amendment or restatement complies with the
39 requirements described in section 5 of this chapter.
40 (9) "Electronic record" has the meaning set forth in
41 IC 26-2-8-102. The term may include one (1) or both of the
42 following:
HB 1208—LS 6175/DI 55 28
1 (A) The document integrity evidence associated with an
2 electronic power of attorney.
3 (B) The identity verification evidence of the principal who
4 executed the electronic power of attorney.
5 (10) "Electronic signature" has the meaning set forth in
6 IC 26-2-8-102.
7 (11) "Executed" means the signing of a power of attorney. The
8 term includes the use of an electronic signature.
9 (12) "Identity verification evidence" means either:
10 (A) a copy of a government issued photo identification card
11 belonging to the principal; or
12 (B) any other information that verifies the identity of the
13 principal if derived from one (1) or more of the following
14 sources:
15 (i) A knowledge based authentication method.
16 (ii) A physical device.
17 (iii) A digital certificate using a public key infrastructure.
18 (iv) A verification or authorization code sent to or used by
19 the principal.
20 (v) Biometric identification.
21 (vi) Any other commercially reasonable method for
22 verifying the principal's identity using current or future
23 technology.
24 (13) "Logically associated" means electronically connected, cross
25 referenced, or linked in a reliable manner.
26 (14) "Observe" means to perceive another's actions or expressions
27 of intent through the senses of eyesight or hearing, or both. The
28 term includes perceptions involving the use of technology or
29 learned skills to:
30 (A) assist the person's capabilities of eyesight or hearing, or
31 both; or
32 (B) compensate for an impairment of the person's capabilities
33 of eyesight or hearing, or both.
34 (15) "Observing" has the meaning set forth in subdivision (14).
35 (16) "Sign" means valid use of a properly executed electronic
36 signature.
37 (17) "Signature" means the authorized use of the principal's name
38 to authenticate a power of attorney. The term includes an
39 electronic signature.
40 (18) "Tamper evident" means the feature of an electronic record,
41 such as an electronic power of attorney or document integrity
42 evidence for an electronic power of attorney, that will cause the
HB 1208—LS 6175/DI 55 29
1 fact of any alteration or tampering with the electronic record, after
2 it is created or signed, to be perceptible to any person viewing the
3 electronic record when it is printed on paper or viewed on a
4 monitor or other display device. The term applies even if the
5 nature or specific content of the alteration is not perceptible.
6 (19) "Traditional paper power of attorney" means a power of
7 attorney or an amendment to or a restatement of a power of
8 attorney that is signed by the principal on paper.
HB 1208—LS 6175/DI 55 30
COMMITTEE REPORT
Mr. Speaker: Your Committee on Judiciary, to which was referred
House Bill 1208, has had the same under consideration and begs leave
to report the same back to the House with the recommendation that said
bill do pass.
(Reference is to HB 1208 as introduced.)
TORR
Committee Vote: Yeas 10, Nays 0
HB 1208—LS 6175/DI 55