*EH1208.1*
February 11, 2022
ENGROSSED
HOUSE BILL No. 1208
_____
DIGEST OF HB 1208 (Updated February 9, 2022 4:53 pm - DI 149)
Citations Affected: IC 16-36; IC 29-1; IC 29-3; IC 30-4; IC 30-5;
IC 34-23; noncode.
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
(Continued next page)
Effective: July 1, 2022.
Young J
(SENATE SPONSORS — FREEMA N, KOCH)
January 6, 2022, read first time and referred to Committee on Judiciary.
January 13, 2022, reported — Do Pass.
January 18, 2022, read second time, ordered engrossed.
January 19, 2022, engrossed.
January 20, 2022, read third time, passed. Yeas 86, nays 0.
SENATE ACTION
February 1, 2022, read first time and referred to Committee on Judiciary.
February 10, 2022, amended, reported favorably — Do Pass.
EH 1208—LS 6175/DI 55 Digest Continued
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. Provides that a person who has
been found guilty, or guilty but mentally ill, on a charge of causing an
unlawful death of a decedent is a constructive trustee of certain
property acquired or entitled to be received by the culpable person.
Includes a married individual who does not have any dependents and
whose death was caused by a spouse within the definition of "adult
person" for the purpose of a wrongful death action. Makes conforming
changes. Makes technical corrections. (The introduced version of this
bill was prepared by the probate code study commission.)
EH 1208—LS 6175/DI 55EH 1208—LS 6175/DI 55 February 11, 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.
ENGROSSED
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 AMENDED BY THE
2 TECHNICAL CORRECTIONS BILL OF THE 2022 GENERAL
3 ASSEMBLY, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
4 JULY 1, 2022]: Sec. 19. (a) As used in this chapter and with respect to
5 interactions between a declarant and a witness who signs or
6 participates in the signing of an advance directive or other document
7 under this chapter, "presence", "present", and "to be present" means
8 that throughout the process of signing and witnessing the advance
9 directive or other document the following must occur:
10 (1) The declarant and the witness are:
11 (A) directly present with each other in the same physical
12 space;
13 (B) able to interact with each other in real time through the use
14 of any audiovisual technology now known or later developed;
15 or
16 (C) able to speak to and hear each other in real time through
17 telephonic interaction when:
EH 1208—LS 6175/DI 55 2
1 (i) the identity of the declarant is personally known to the
2 witness;
3 (ii) the witness is able to view a government issued,
4 photographic identification of the declarant; or
5 (iii) the witness is able to ask any question of the declarant
6 that authenticates the identity of the declarant and
7 establishes the capacity and sound mind of the declarant to
8 the satisfaction of the witness.
9 (2) The witnesses are able to positively identify the declarant by
10 viewing a government issued, photographic identification of the
11 declarant, or by receiving accurate answers from the declarant
12 that authenticate the identity of the declarant and establish the
13 capacity and sound mind of the declarant to the satisfaction of the
14 witness.
15 (3) Each witness is able to interact with the declarant and each
16 other witness, if any, by observing:
17 (A) the declarant's expression of intent to execute an advance
18 directive or other document under this chapter;
19 (B) the declarant's actions in executing or directing the
20 execution of the advance directive or other document under
21 this chapter; and
22 (C) the actions of each other witness in signing the advance
23 directive or other document.
24 The requirements of subdivisions (2) and (3) are satisfied even if the
25 declarant and one (1) or all witnesses use technology to assist with one
26 (1) or more of the capabilities of hearing, eyesight, or speech to
27 compensate for impairments of any one (1) or more of those
28 capabilities.
29 (b) As used in this chapter and with respect to interactions between
30 a declarant and a notarial officer who signs or participates in the
31 signing of an advance directive or other document under this chapter,
32 "presence", "present", and "to be present" means that throughout the
33 process of signing, acknowledging, and notarizing the advance
34 directive or other document the following must occur:
35 (1) The declarant and the notarial officer are:
36 (A) directly present with each other in the same physical
37 space; or
38 (B) able to interact with each other in real time through the use
39 of any audiovisual technology, now known or later developed,
40 whose use complies with IC 33-42.
41 (2) The notarial officer is able to positively identify the declarant
42 by using an identity proofing method permitted under
EH 1208—LS 6175/DI 55 3
1 IC 33-42-0.5-16.
2 (3) Each witness or the notarial officer is able to interact with the
3 declarant and each other witness, if any, by observing the
4 declarant's:
5 (A) expression of intent to execute an advance directive or
6 other document under this chapter; and
7 (B) actions in executing or directing the execution of the
8 advance directive or other document under this chapter.
9 If the declarant appears before the notarial officer in a manner that
10 satisfies the definitions of "appear" and "appearance" as defined in
11 IC 33-42-0.5, IC 33-42-0.5-3, then the declarant and the notarial
12 officer satisfy the presence requirement described in this chapter. The
13 requirements specified in subdivisions (2) and (3) are satisfied even if
14 the testator declarant and the notarial officer use technology to assist
15 with one (1) or more of the capabilities of hearing, eyesight, or speech
16 to compensate for impairments of any one (1) or more of those
17 capabilities.
18 SECTION 2. IC 29-1-1-12, AS AMENDED BY P.L.95-2007,
19 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
20 JULY 1, 2022]: Sec. 12. (a) Unless waived and except as otherwise
21 provided by law, all notices required by this article to be served upon
22 any person shall be served as the court shall direct by rule or in a
23 particular case, by:
24 (1) delivering a copy of the notice to the person or by leaving a
25 copy of the notice at the person's last and usual place of residence,
26 at least ten (10) days before the hearing, if the person is a resident
27 of the state of Indiana;
28 (2) publication, if the person is a nonresident of the state of
29 Indiana or if the person's residence is unknown, once each week
30 for three (3) weeks consecutively in a newspaper printed and
31 circulating in the county where the court is held, the first day of
32 publication to be at least thirty (30) days prior to the date set for
33 hearing; or in case there is no newspaper printed in the county,
34 then in a newspaper circulating in the county where the
35 proceeding is pending, and designated by the judge or clerk;
36 (3) first class postage prepaid mail addressed to the person
37 located in the United States, at the person's address stated in the
38 petition for the hearing, to be posted by depositing in any United
39 States post office in this state at least fourteen (14) days prior to
40 the date set for hearing in the notice;
41 (4) personal service on nonresidents to be served by any officer
42 authorized to serve process in the county of the nonresident,
EH 1208—LS 6175/DI 55 4
1 which notice shall be served at least fourteen (14) days prior to
2 the date set for hearing in such notice; or
3 (5) any combination of two (2) or more of the above.
4 (b) In all cases where service by publication is ordered but personal
5 service or service by registered mail is not ordered, all persons directed
6 by the provisions of this article, or by order of the court, to be notified,
7 whose names and addresses are known or can by reasonable diligence
8 be ascertained by the party charged with the duty of giving notice, shall
9 in addition to the published notice required by order, be served by a
10 written notice by United States first class postage prepaid mail at least
11 fourteen (14) days prior to the date set for hearing in the notice.
12 (c) The personal representative or party charged with the duty of
13 giving notice shall furnish the clerk with sufficient copies of the notice,
14 prepared for mailing, and the clerk shall mail the notice.
15 SECTION 3. IC 29-1-1-13 IS AMENDED TO READ AS
16 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 13. Service by
17 publication and by mail shall be made by the clerk at the instance of the
18 party who requires such service to be made. Personal service may be
19 made by any competent person unless otherwise directed by the court
20 or the provisions of this article.
21 SECTION 4. IC 29-1-1-16 IS AMENDED TO READ AS
22 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 16. Proof of service in
23 all cases requiring notice, whether by publication, mailing or otherwise,
24 shall be filed before the hearing. Service made by a private person shall
25 be proved by the affidavit of the person; service made by the clerk or
26 other an official shall be proved by certificate or return of service.
27 SECTION 5. IC 29-1-2-12.1, AS AMENDED BY P.L.238-2005,
28 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
29 JULY 1, 2022]: Sec. 12.1. (a) A person is a constructive trustee of any
30 property that is acquired by the person or that the person is otherwise
31 entitled to receive as a result of an individual's death, including
32 property from a trust, if that person has been found guilty, or guilty but
33 mentally ill, of murder, causing suicide, or voluntary manslaughter,
34 because of the individual's death. The following definitions apply
35 throughout this section:
36 (1) "Culpable person" means any of the following:
37 (A) A person who:
38 (i) has been charged with causing an unlawful death; and
39 (ii) is found guilty, or guilty but mentally ill, on a charge
40 of causing an unlawful death under a guilty plea or
41 guilty verdict under IC 35-35-1 or IC 35-36-2.
42 (B) A person who is determined by a preponderance of the
EH 1208—LS 6175/DI 55 5
1 evidence in a civil action to have knowingly or intentionally
2 caused an unlawful death.
3 (C) The estate of a person who:
4 (i) is described in clause (A) or (B); and
5 (ii) died after causing an unlawful death.
6 (2) "Decedent" means the victim of an unlawful death.
7 (3) "Unlawful death" means a death resulting from murder,
8 voluntary manslaughter, or suicide caused by a person other
9 than the decedent. The term includes a death resulting from
10 an offense under IC 35-42-1-1, IC 35-42-1-2, or IC 35-42-1-3.
11 (b) A judgment of conviction is conclusive in a subsequent civil
12 action to have the a culpable person declared a constructive trustee
13 under subsection (e).
14 (c) A culpable person is a constructive trustee of any property
15 that is acquired by the culpable person or that the culpable person
16 is entitled to receive as a result of an unlawful death, including the
17 following:
18 (1) Property from a trust.
19 (2) Property from a transfer on death transfer under
20 IC 32-17-14.
21 (3) Proceeds under a policy or certificate of life insurance on
22 the life of the decedent, if the culpable person:
23 (A) is a beneficiary; and
24 (B) would otherwise be entitled to receive the proceeds;
25 under the policy or certificate.
26 (4) Proceeds under a policy or certificate of life insurance on
27 the life of the culpable person, if the decedent:
28 (A) was a beneficiary; and
29 (B) would otherwise be entitled to receive the proceeds;
30 under the policy or certificate.
31 (5) The decedent's interest in joint tenancy property that
32 would otherwise pass by survivorship to the culpable person
33 as a result of the decedent's death.
34 (6) Property passing under a contractual agreement upon the
35 decedent's death.
36 (d) If a culpable person dies after causing an unlawful death, life
37 insurance proceeds that would otherwise be subject to a
38 constructive trust under subsection (c)(3) or (c)(4) may be paid in
39 the same manner as the life insurance proceeds would be paid if the
40 culpable person had predeceased the decedent.
41 (b) (e) A civil action may be initiated by an interested person to
42 have a culpable person declared a constructive trustee of property that
EH 1208—LS 6175/DI 55 6
1 is acquired by the culpable person, or that the culpable person is
2 otherwise entitled to receive including property from a trust, as a result
3 of an individual's death, if: unlawful death.
4 (1) the person has been charged with murder, causing suicide, or
5 voluntary manslaughter, because of the individual's death; and
6 (2) the person has been found not responsible by reason of
7 insanity at the time of the crime.
8 If a civil action is initiated under this subsection, the court shall declare
9 that the culpable person is a constructive trustee of the property if by
10 a preponderance of the evidence it is determined that the culpable
11 person killed or caused the suicide of the individual. unlawful death.
12 (c) (f) If a constructive trust is established under this section, the
13 property that is subject to the trust may be used only to benefit those
14 persons, other than the culpable person and constructive trustee,
15 legally entitled to the property, determined as if the constructive trustee
16 had died immediately before the decedent. However, if any property
17 that the constructive trustee acquired as a result of the decedent's
18 unlawful death has been sold to an innocent purchaser for value who
19 acted in good faith, that property is no longer subject to the
20 constructive trust, but the property received from the purchaser under
21 the transaction becomes subject to the constructive trust.
22 SECTION 6. IC 29-1-3-3 IS AMENDED TO READ AS FOLLOWS
23 [EFFECTIVE JULY 1, 2022]: Sec. 3. (a) The election to take the share
24 hereinbefore provided shall be in writing, signed and acknowledged by
25 the surviving spouse or by the guardian of his the estate and shall be
26 filed in the office of the clerk of the court. It may be in the following
27 form:
28 I, A.B., surviving wife (or husband) of C.D., late of the county of
29 ____________ and state of _______, do hereby elect to take my legal
30 share in the estate of the said C.D. and I do hereby renounce provisions
31 in the will of the said C.D. inconsistent herewith.
32 Signed,
33 (Signature)
34 (Acknowledgment)
35 (b) Said election shall be recorded by such clerk in the record of
36 wills, marginal reference being made from such record to the book and
37 page in which such will is recorded, and from the record of such will
38 to the book and page where such election is recorded.
39 (c) The clerk shall cause a copy of said election to be served upon
40 the personal representative and his the personal representative's
41 attorney of record by United States through the E-filing System of the
42 Indiana Courts or by first class postage prepaid mail addressed to
EH 1208—LS 6175/DI 55 7
1 such persons at their respective addresses as shown by the petition for
2 probate of will and appointment of personal representative.
3 SECTION 7. IC 29-1-7-7, AS AMENDED BY P.L.231-2019,
4 SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
5 JULY 1, 2022]: Sec. 7. (a) As soon as letters testamentary or of
6 administration, general or special, supervised or unsupervised, have
7 been issued, the clerk of the court shall publish notice of the estate
8 administration shall be published.
9 (b) The notice required under subsection (a) shall be published in
10 a newspaper of general circulation, printed in the English language and
11 published in the county where the court is located, once each week for
12 two (2) consecutive weeks. A copy of the notice, with proof of
13 publication, shall be filed with the clerk of the court as a part of the
14 administration of the estate within thirty (30) days after the publication.
15 If no newspaper is published in the county, the notice shall be
16 published in a newspaper published in an adjacent county.
17 (c) The notice required under subsection (a) shall be served
18 through the E-filing System of the Indiana Courts or by first class
19 postage prepaid mail on each heir, devisee, legatee, and known creditor
20 whose name and address is set forth in the petition for probate or
21 letters, except as otherwise ordered by the court. The personal
22 representative shall furnish sufficient copies of the notice, prepared for
23 mailing, and the clerk of the court shall mail the notice upon the
24 issuance of letters.
25 (d) The personal representative or the personal representative's
26 agent shall serve notice on each creditor of the decedent:
27 (1) whose name is not set forth in the petition for probate or
28 letters under subsection (c);
29 (2) who is known or reasonably ascertainable within one (1)
30 month after the first publication of notice under subsection (a);
31 and
32 (3) whose claim has not been paid or settled by the personal
33 representative.
34 The notice may be served by mail or any other means reasonably
35 calculated to ensure actual receipt of the notice by a creditor. The unit
36 is a reasonably ascertainable creditor under this section if the decedent
37 was at least fifty-five (55) years of age at the time of death and dies on
38 or after June 30, 2018. Notice served under this section by mail to the
39 unit at the unit's address is reasonably calculated to ensure receipt of
40 the notice by the unit.
41 (e) Notice under subsection (d) shall be served within one (1) month
42 after the first publication of notice under subsection (a) or as soon as
EH 1208—LS 6175/DI 55 8
1 possible after the elapse of one (1) month. If the personal representative
2 or the personal representative's agent fails to give notice to a known or
3 reasonably ascertainable creditor of the decedent under subsection (d)
4 within one (1) month after the first publication of notice under
5 subsection (a), the period during which the creditor may submit a claim
6 against the estate includes an additional period ending two (2) months
7 after the date notice is given to the creditor under subsection (d).
8 However, a claim filed under IC 29-1-14-1(a) more than nine (9)
9 months after the death of the decedent is barred.
10 (f) A schedule of creditors that received notice under subsection (d)
11 shall be delivered to the clerk of the court as soon as possible after
12 notice is given.
13 (g) The giving of notice to a creditor or the listing of a creditor on
14 the schedule delivered to the clerk of the court does not constitute an
15 admission by the personal representative that the creditor has an
16 allowable claim against the estate.
17 (h) If any person entitled to receive notice under this section is
18 under a legal disability, the notice may be served upon or waived by the
19 person's natural or legal guardian or by the person who has care and
20 custody of the person.
21 (i) The notice shall read substantially as follows:
22 NOTICE OF ADMINISTRATION
23 In the _____________ Court of ______________ County, Indiana.
24 Notice is hereby given that _________ was, on the ____ day of
25 ______, 20 __, appointed personal representative of the estate of
26 _________, deceased, who died on the ___ day of ________, 20 __.
27 All persons who have claims against this estate, whether or not now
28 due, must file the claim in the office of the clerk of this court within
29 three (3) months from the date of the first publication of this notice, or
30 within nine (9) months after the decedent's death, whichever is earlier,
31 or the claims will be forever barred.
32 Dated at ________, Indiana, this ___ day of ______, 20 __.
33 _______________________________
34 CLERK OF THE _________ COURT
35 FOR _______ COUNTY, INDIANA
36 SECTION 8. IC 29-1-8-3, AS AMENDED BY P.L.56-2020,
37 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
38 JULY 1, 2022]: Sec. 3. (a) As used in this section, "fiduciary" means:
39 (1) the personal representative of an unsupervised estate; or
40 (2) a person appointed by a court under this title to act on behalf
41 of the decedent or the decedent's distributees.
42 (b) Except as otherwise provided in this section, if the value of a
EH 1208—LS 6175/DI 55 9
1 decedent's gross probate estate, less liens and encumbrances, does not
2 exceed the sum of:
3 (1) an amount equal to:
4 (A) twenty-five thousand dollars ($25,000), for the estate of an
5 individual who dies before July 1, 2006; and
6 (B) fifty thousand dollars ($50,000), for the estate of an
7 individual who dies after June 30, 2006;
8 (2) the costs and expenses of administration; and
9 (3) reasonable funeral expenses;
10 the fiduciary, without giving notice to creditors, may file disburse and
11 distribute the estate to the persons entitled to it, followed by the
12 filing of a closing statement, as provided in section 4 of this chapter
13 and disburse and distribute the estate to the persons entitled to it, as
14 provided in section 4 of this chapter.
15 (c) If an estate described in subsection (a) includes real property, an
16 affidavit may be recorded in the office of the recorder in the county in
17 which the real property is located. The affidavit must contain the
18 following:
19 (1) The legal description of the real property.
20 (2) The following statements:
21 (A) If the individual dies after June 30, 2006, the following
22 statement: "It appears that the decedent's gross probate estate,
23 less liens and encumbrances, does not exceed the sum of the
24 following: fifty thousand dollars ($50,000), the costs and
25 expenses of administration, and reasonable funeral expenses.".
26 (B) If the individual dies before July 1, 2006, the following
27 statement: "It appears that the decedent's gross probate estate,
28 less liens and encumbrances, does not exceed the sum of the
29 following: twenty-five thousand dollars ($25,000), the costs
30 and expenses of administration, and reasonable funeral
31 expenses.".
32 (3) The name of each person entitled to at least a part interest in
33 the real property as a result of a decedent's death, the share to
34 which each person is entitled, and whether the share is a divided
35 or undivided interest.
36 (4) A statement which explains how each person's share has been
37 determined.
38 SECTION 9. IC 29-1-8-4, AS AMENDED BY P.L.56-2020,
39 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
40 JULY 1, 2022]: Sec. 4. (a) As used in this section, "fiduciary" means:
41 (1) the personal representative of an unsupervised estate; or
42 (2) a person appointed by a court under this title to act on behalf
EH 1208—LS 6175/DI 55 10
1 of the decedent or the decedent's distributees.
2 (b) Unless prohibited by order of the court and except for estates
3 being administered by supervised personal representatives, a fiduciary
4 may close an estate administered under the summary procedures of
5 section 3 of this chapter by disbursing and distributing the estate
6 assets to the distributees and other persons entitled to those assets,
7 and by filing with the court, at any time after disbursement and
8 distribution of the estate, a verified statement stating that:
9 (1) to the best knowledge of the fiduciary, the value of the gross
10 probate estate, less liens and encumbrances, did not exceed the
11 sum of:
12 (A) twenty-five thousand dollars ($25,000), for the estate of an
13 individual who dies before July 1, 2006, and fifty thousand
14 dollars ($50,000), for the estate of an individual who dies after
15 June 30, 2006;
16 (B) the costs and expenses of administration; and
17 (C) reasonable funeral expenses;
18 (2) the fiduciary has fully administered the estate by disbursing
19 and distributing it to the persons entitled to it; and
20 (3) the fiduciary has sent a copy of the closing statement to all
21 distributees of the estate and to all known creditors or other
22 claimants of whom the fiduciary is aware and has furnished a full
23 accounting in writing of the administration to the distributees
24 whose interests are affected.
25 (c) If no actions, claims, objections, or proceedings involving the
26 fiduciary are filed in the court within two (2) months after the closing
27 statement is filed, the fiduciary may immediately disburse and
28 distribute the estate free from claims to the persons entitled to the
29 disbursement and distribution. After disbursing and distributing an
30 estate, the fiduciary must file a report in the court of the disbursement
31 and distribution. the closing statement filed under this section has
32 the same effect as one filed under IC 29-1-7.5-4, and the
33 appointment of the personal representative or the duties of the
34 fiduciary, as applicable, shall terminate. upon the filing of the report.
35 (d) A closing statement filed under this section has the same effect
36 as one (1) filed under IC 29-1-7.5-4.
37 (e) (d) A copy of any affidavit recorded under section 3(c) of this
38 chapter must be attached to the closing statement filed under this
39 section.
40 SECTION 10. IC 29-1-10-15 IS AMENDED TO READ AS
41 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 15. (a) A special
42 administrator may be appointed by the court if:
EH 1208—LS 6175/DI 55 11
1 (a) (1) from any cause, delay is necessarily occasioned in granting
2 letters; or
3 (b) (2) before the expiration of the time allowed by law for issuing
4 letters, any competent person shall file his an affidavit with the
5 clerk stating that anyone is intermeddling with the estate or that
6 there is no one having authority to take care of the same; or
7 (c) (3) if any person shall have died testate and objections to the
8 probate of his the person's will shall have been filed as provided
9 by law;
10 (4) the court determines that the appointment is necessary
11 under IC 29-1-13-16; or
12 (5) no personal representative has been appointed and the
13 appointment is sought for the sole purpose of pursuing
14 damages for a decedent's wrongful death after notice and
15 hearing as provided in section 15.5 of this chapter.
16 (b) The appointment of a special administrator may be for a
17 specified time to perform duties respecting specific property, or to
18 perform particular acts as shall be stated in the order of appointment.
19 The fact that a person has been designated as executor in a decedent's
20 will shall not disqualify him the person from being appointed special
21 administrator of such decedent's estate or any portion thereof.
22 (c) The special administrator shall make such reports as the court
23 shall direct, and shall account to the court upon the termination of his
24 the special administrator's authority. Otherwise, and except as the
25 provisions of this article by terms apply to general personal
26 representatives, and except as ordered by the court, the law and
27 procedure relating to personal representatives in this article shall apply
28 to special administrators. The order appointing a special administrator
29 shall not be appealable.
30 SECTION 11. IC 29-1-10-15.5 IS ADDED TO THE INDIANA
31 CODE AS A NEW SECTION TO READ AS FOLLOWS
32 [EFFECTIVE JULY 1, 2022]: Sec. 15.5. (a) Upon the filing of a
33 petition for the appointment of a special administrator for the sole
34 purpose of pursuing a claim for the decedent's wrongful death,
35 hearing and notice shall be had as set forth in this section.
36 (b) The court or clerk shall set a date by which all objections or
37 petitions for an alternate appointment must be filed in writing, and
38 the clerk shall give notice to all interested persons that a petition
39 for appointment of a special administrator to pursue a claim for
40 decedent's wrongful death has been filed and will be acted upon by
41 the court on the date set unless written objections or requests for
42 an alternate special administrator are presented to the court on or
EH 1208—LS 6175/DI 55 12
1 before that date.
2 (c) In the petition for appointment as special administrator, the
3 petitioner shall identify the names and addresses of all persons
4 potentially interested in the wrongful death claim whose names and
5 addresses are known to the petitioner or may by reasonable
6 diligence be ascertained. The petitioner shall provide sufficient
7 copies of the notice described in subsection (b), prepared for
8 mailing to the clerk. The clerk shall send a copy of the notice by
9 ordinary mail to each of such interested persons at least thirty (30)
10 days prior to the hearing date. Any interested person may waive
11 the service by mail of this notice. Neither a notice nor a hearing is
12 required if all persons entitled to notice waive in writing the service
13 of notice by mail and consent to the appointment of the special
14 administrator without a hearing.
15 (d) If a person interested in the wrongful death claim is
16 unknown or cannot be located, the petitioner may give notice by
17 one (1) publication in a newspaper of general circulation, published
18 in the county in which the petition is pending.
19 (e) The deadline for filing an objection or request for an
20 alternate special administrator is fourteen (14) days before the
21 hearing date. The notice described in subsections (b) and (c) shall
22 state that objections or a request for an alternate special
23 administrator must be filed in writing at least fourteen (14) days
24 before the hearing date.
25 SECTION 12. IC 29-1-16-6 IS AMENDED TO READ AS
26 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 6. (a) Upon the filing
27 of any account in a decedent's estate, hearing and notice thereof shall
28 be had as set forth in this section.
29 (b) If the account is for final settlement, the court or clerk shall set
30 a date by which all objections to such final account and petition for
31 distribution must be filed in writing. and The date shall be at least
32 fourteen (14) days before the hearing date. clerk The personal
33 representative or the personal representative's agent shall give
34 notice to all persons:
35 (1) who are entitled to share in the final distribution of said
36 estate; and
37 (2) whose names and addresses are known to the personal
38 representative or may by reasonable diligence be ascertained
39 as set forth in the personal representative's petition for
40 distribution;
41 that a final report has been filed and will be acted upon by the court on
42 the date set unless written objections are presented to the court on or
EH 1208—LS 6175/DI 55 13
1 at least fourteen (14) days before that the hearing date. The personal
2 representative shall at the time said account is filed furnish to the clerk
3 the names and addresses of all persons entitled to share in the
4 distribution of the residue of said estate, whose names and addresses
5 are known to the personal representative or may by reasonable
6 diligence be ascertained as set forth in the personal representative's
7 petition for distribution, together with sufficient copies of said notice
8 prepared for mailing. The clerk personal representative or the
9 personal representative's agent shall send a copy of said notice by
10 ordinary through the E-filing System of the Indiana Courts or by
11 first class postage prepaid mail to each of said parties at least
12 fourteen (14) thirty (30) days prior to such the hearing date. Said
13 parties or their attorney of record may waive the service by mail of this
14 notice and where there is an attorney of record, service upon said
15 attorney shall be sufficient as to the parties represented by said
16 attorney. Neither a notice nor a hearing is required if all persons
17 entitled to share in the final distribution of the estate waive the service
18 of notice by mail and consent to the final account and petition for
19 distribution without a hearing.
20 (c) If a person entitled to share in the distribution of the residue of
21 the estate is unknown or cannot be located, the personal representative
22 may give notice by one (1) publication in a newspaper of general
23 circulation, published in the county in which the administration is
24 pending. The deadline for filing an objection is fourteen (14) days
25 before the hearing date. The notice shall state that objections to the
26 final account and petition for distribution must be filed in writing at
27 least fourteen (14) days before the hearing date.
28 (d) If the account is intermediate, but the personal representative has
29 therein petitioned the court that said account be made final as to the
30 matters and things reported in said account, the same procedure as to
31 hearing and notice shall be followed as in the case of a final account.
32 (e) If the account is intermediate and the personal representative
33 makes no request that said account may be made final as to the matters
34 and things reported in said account, the court may order such notice as
35 the court deems necessary or approve the same ex parte and without
36 notice. Every such intermediate account approved without notice shall
37 be subject to review by the court at any time and shall not become final
38 until the personal representative's account in final settlement is
39 approved by the court.
40 SECTION 13. IC 29-1-16-7 IS AMENDED TO READ AS
41 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 7. At any time prior to
42 the hearing on an account of a personal representative, As stated in
EH 1208—LS 6175/DI 55 14
1 section 6 of this chapter, any interested person may file written
2 objections to any item or omission in the account. All such objections
3 shall be specific and shall indicate the modification desired.
4 SECTION 14. IC 29-1-17-15.1, AS AMENDED BY P.L.136-2018,
5 SECTION 218, IS AMENDED TO READ AS FOLLOWS
6 [EFFECTIVE JULY 1, 2022]: Sec. 15.1. (a) Whenever any person has
7 died leaving property or any interest in property and no general
8 administration has been commenced on the person's estate in this state,
9 nor has any will been offered for probate in this state, within five (5)
10 months after the person's death, any person claiming an interest in such
11 property as heir or through an heir may file a petition in any court
12 which would be of proper venue for the administration of such
13 decedent's estate, to determine the heirs of said decedent and their
14 respective interests as heirs in the estate.
15 (b) The petition shall state:
16 (1) The name, age, domicile and date of death of the decedent;
17 (2) The names, ages and residence addresses of the heirs, so far
18 as known or can with reasonable diligence be ascertained;
19 (3) The names and residence addresses of any persons claiming
20 any interest in such property through an heir, so far as known or
21 can by reasonable diligence be ascertained;
22 (4) A particular description of the property with respect to which
23 such determination is sought; and
24 (5) The net value of the estate.
25 (c) Upon the filing of the petition, the court shall fix the time for the
26 hearing, thereof, notice of which shall be given to:
27 (1) All persons known or believed to claim any interest in the
28 property as heir or through an heir of the decedent;
29 (2) All persons who may at the date of the filing of the petition be
30 shown by the records of conveyances of the county in which any
31 real property described in such petition is located to claim any
32 interest therein through the heirs of the decedent; and
33 (3) Any unknown heirs of the decedent.
34 Such notice shall be given by publication and, in addition personal
35 notice through the E-filing System of the Indiana Courts or by
36 registered first class postage prepaid mail, shall be given to every
37 such person whose address is known to the petitioner. Upon
38 satisfactory proofs the court shall make a decree determining the heirs
39 of said decedent and their respective interests as heirs in said property.
40 (d) A certified copy of the decree shall be recorded at the expense
41 of the petitioner in each county in which any real property described in
42 the decree is situated except the county in which the decree is entered,
EH 1208—LS 6175/DI 55 15
1 and shall be conclusive evidence of the facts determined in the decree
2 as against all parties to the proceedings.
3 SECTION 15. IC 29-1-21-16, AS AMENDED BY P.L.185-2021,
4 SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
5 JULY 1, 2022]: Sec. 16. (a) As used in this section and for the purpose
6 of offering or submitting an electronic will in probate under IC 29-1-7,
7 the "filing of an electronic will" means the electronic filing of a
8 complete converted copy of the associated electronic will.
9 (b) When filing an electronic will, the filing of any accompanying
10 document integrity evidence or identity verification is not required
11 unless explicitly required by the court.
12 (c) If a person files an electronic will:
13 (1) for the purpose of probating the electronic will; and
14 (2) including accompanying:
15 (A) document integrity evidence;
16 (B) identity verification evidence; or
17 (C) evidence described in both clauses (A) and (B);
18 in the filing or in response to a court order under subsection (e)(2), the
19 person shall file a complete and unredacted copy of the evidence
20 described in clauses (A) and (B) as a nonpublic document under Ind.
21 Administrative Rule 9(G). Rule 5 of the Rules on Access to Court
22 Records. All personally identifying information pertaining to the
23 testator or the attesting witnesses shall be redacted in the publicly filed
24 copy.
25 (d) If an electronic will includes a self-proving clause that complies
26 with section 4(f) of this chapter, the testator's and witnesses'
27 compliance with the execution requirements shall be presumed upon
28 the filing of the electronic will with the court without the need for any
29 additional testimony or an accompanying affidavit. The presumption
30 described in this subsection may be subject to rebuttal or objection on
31 the grounds of fraud, forgery, or impersonation.
32 (e) After determining that a testator is dead and that the testator's
33 electronic will has been executed in compliance with applicable law,
34 the court may:
35 (1) enter an order, without requiring the submission of additional
36 evidence, admitting the electronic will to probate as the last will
37 of the deceased testator unless objections are filed under
38 IC 29-1-7-16; or
39 (2) require the petitioner to submit additional evidence regarding:
40 (A) the proper execution of the electronic will; or
41 (B) the electronic will's freedom from unauthorized alteration
42 or tampering after its execution.
EH 1208—LS 6175/DI 55 16
1 The court may require the submission of additional evidence under
2 subdivision (2) on the court's own motion or in response to an objection
3 filed under IC 29-1-7-16.
4 (f) The additional evidence that the court may require and rely upon
5 under subsection (e)(2) may include one (1) or more of the following:
6 (1) Readable copies of the document integrity evidence or the
7 identity verification evidence associated with the electronic will.
8 (2) All or part of the electronic record (if available) in a native or
9 computer readable form.
10 (3) A sworn or verified affidavit from:
11 (A) an attorney or other person who supervised the execution
12 of the electronic will; or
13 (B) one (1) or more of the attesting witnesses.
14 (4) An affidavit signed under section 9(b) of this chapter by a
15 person who created a complete converted copy of the electronic
16 will.
17 (5) A sworn or verified affidavit from a qualified person that:
18 (A) describes the person's training and expertise;
19 (B) describes the results of the person's forensic examination
20 of the electronic record associated with:
21 (i) the electronic will at issue; or
22 (ii) any other relevant evidence; and
23 (C) affirms that the electronic will was not altered or tampered
24 with after its execution.
25 (6) Any other evidence, including other affidavits or testimony,
26 that the court considers material or probative on the issues of
27 proper execution or unauthorized alteration or tampering.
28 (g) If the court enters an order admitting an electronic will to
29 probate after receiving additional evidence, any of the additional
30 evidence may be disputed through a will contest that is timely filed
31 under IC 29-1-7-17.
32 SECTION 16. IC 29-1-22-1, AS ADDED BY P.L.231-2019,
33 SECTION 20, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
34 JULY 1, 2022]: Sec. 1. The following terms are defined for this
35 chapter:
36 (1) "Complete converted copy" means a document in any format
37 that:
38 (A) can be visually perceived in its entirety on a monitor or
39 other display device;
40 (B) can be printed; and
41 (C) contains the following:
42 (i) The text of an electronic will.
EH 1208—LS 6175/DI 55 17
1 (ii) The respective electronic signatures of the testator and
2 attesting witnesses.
3 (iii) A readable copy of all document integrity evidence, if
4 applicable.
5 (iv) A self-proving affidavit if the electronic will is
6 self-proved.
7 (2) "Document integrity evidence" means the part of the
8 electronic will, electronic trust instrument, or electronic power of
9 attorney that:
10 (A) is created and maintained electronically;
11 (B) includes digital markers to demonstrate that the electronic
12 will, electronic trust instrument, or electronic power of
13 attorney has not been altered or tampered with after its
14 execution;
15 (C) is logically associated with the electronic will, electronic
16 trust instrument, or electronic power of attorney;
17 (D) will generate an error message, invalidate an electronic
18 signature, make the electronic record unreadable, or otherwise
19 display evidence that some alteration was made to the
20 electronic record after its execution; and
21 (E) includes the following information:
22 (i) The city, state, date, and time of the execution of the
23 electronic will, electronic trust instrument, or electronic
24 power of attorney by the testator, settlor, or principal and
25 any attesting witnesses as applicable.
26 (ii) The text of the self-proving affidavit if the document is
27 an electronic will and is self-proved.
28 (iii) The name of the testator, settlor, or principal and the
29 names of all attesting witnesses, if applicable.
30 (iv) The name and address of any person responsible for
31 signing the signature of the testator, settlor, or principal on
32 the electronic document at the direction and in the presence
33 of the testator, settlor, or principal.
34 (v) Copies of or links to the electronic signatures of the
35 testator, settlor, or principal and any attesting witnesses, if
36 applicable.
37 (vi) A general description of the type of identity verification
38 evidence used to verify the identity of the testator, settlor, or
39 principal.
40 (vii) The content of the cryptographic hash or unique code
41 used to complete the electronic will, electronic trust
42 instrument, or electronic power of attorney and make the
EH 1208—LS 6175/DI 55 18
1 electronic will, electronic trust instrument, or electronic
2 power of attorney tamper evident if a public key
3 infrastructure or similar secure technology was used to sign
4 or authenticate the electronic will, electronic trust
5 instrument, or electronic power of attorney and if the vendor
6 or the software for the technology makes inclusion feasible.
7 (3) "Electronic estate planning document" means:
8 (A) an electronic will;
9 (B) an electronic trust instrument;
10 (C) an electronic power of attorney; or
11 (D) any electronic document that:
12 (i) revokes; or
13 (ii) amends;
14 any document described in clauses (A) through (C).
15 (4) "Electronic power of attorney" means a power of attorney
16 created by a principal that:
17 (A) is initially created and maintained as an electronic record;
18 (B) contains the electronic signature of the principal creating
19 the power of attorney;
20 (C) contains the date and time of the electronic signature of the
21 principal creating the power of attorney; and
22 (D) is notarized. has the meaning set forth in
23 IC 30-5-11-3(8).
24 The term includes an amendment to or a restatement of the power
25 of attorney if the amendment or restatement complies with the
26 requirements described in IC 30-5-11-5.
27 (5) "Electronic record" has the meaning set forth in
28 IC 26-2-8-102(9). The term may include one (1) or more of the
29 following:
30 (A) The document integrity evidence associated with an
31 electronic will, electronic trust instrument, or electronic power
32 of attorney.
33 (B) The identity verification evidence of the testator, settlor,
34 or principal who executed the electronic will, electronic trust
35 instrument, or electronic power of attorney.
36 (6) "Electronic signature" has the meaning set forth in
37 IC 26-2-8-102(10).
38 (7) "Electronic trust instrument" means a trust instrument for an
39 inter vivos trust created by a settlor or other person that:
40 (A) is initially created and maintained as an electronic record;
41 (B) contains the electronic signature of the settlor or other
42 person creating the trust; and
EH 1208—LS 6175/DI 55 19
1 (C) contains the date and time of the electronic signature of the
2 settlor or other person creating the trust.
3 The term includes an amendment to or a restatement of a
4 revocable trust instrument when the amendment or restatement is
5 executed in accordance with the requirements of IC 30-4-1.5-6.
6 (8) "Electronic will" means the will of a testator that:
7 (A) is initially created and maintained as an electronic record;
8 (B) contains the electronic signatures of the testator and
9 attesting witnesses; and
10 (C) contains the date and time of the electronic signatures.
11 (9) "Executed" means the signing of an electronic estate planning
12 document. The term includes the use of an electronic signature.
13 (10) "Identity verification evidence" means:
14 (A) a copy of the government issued photo identification card
15 of the testator, settlor, or principal; or
16 (B) any other information that verifies the identity of the
17 testator, settlor, or principal if derived from one (1) or more of
18 the following sources:
19 (i) A knowledge based authentication method.
20 (ii) A physical device.
21 (iii) A digital certificate using a public key infrastructure.
22 (iv) A verification or authorization code sent to or used by
23 the testator, settlor, or principal.
24 (v) Biometric identification.
25 (vi) Any other commercially reasonable method for
26 verifying the identity of the testator, settlor, or principal
27 using current or future technology.
28 (11) "Index" means the electronic estate planning documents
29 index created under section 2(e) of this chapter.
30 (12) "Logically associated" means electronically connected,
31 cross-referenced, or linked in a reliable manner.
32 (13) "Registry" means the statewide electronic estate planning
33 documents registry described in section 2(a) of this chapter.
34 (14) "Sign" means valid use of a properly executed electronic
35 signature.
36 (15) "Signature" means the authorized use of the name of the
37 testator, settlor, or principal to authenticate an electronic will,
38 electronic trust instrument, or electronic power of attorney. The
39 term includes an electronic signature.
40 (16) "Tamper evident" means the feature of an electronic record,
41 such as an electronic estate planning document or document
42 integrity evidence for an electronic estate planning document, that
EH 1208—LS 6175/DI 55 20
1 will cause any alteration of or tampering with the electronic
2 record, after it is created or signed, to be perceptible to any person
3 viewing the electronic record when it is printed on paper or
4 viewed on a monitor or other display device. The term applies
5 even if the nature or specific content of the alteration is not
6 perceptible.
7 (17) "Traditional paper estate planning document" means a will,
8 codicil, trust instrument, or power of attorney that is signed on
9 paper by the testator, settlor, or principal and:
10 (A) the attesting witnesses, in the case of a will or codicil; or
11 (B) a notary public, in the case of a power of attorney.
12 SECTION 17. IC 29-3-3-3, AS AMENDED BY P.L.79-2017,
13 SECTION 74, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
14 JULY 1, 2022]: Sec. 3. Except as otherwise determined in a dissolution
15 of marriage proceeding, a custody proceeding, or in some other
16 proceeding authorized by law, including a proceeding under section 6
17 of this chapter or another proceeding under this article, and unless a
18 minor is married, the parents of the minor jointly (or the survivor if one
19 (1) parent is deceased), if not an incapacitated person, have, without
20 the appointment of a guardian, giving of bond, or order or confirmation
21 of court, the right to custody of the person of the minor and the power
22 to execute the following on behalf of the minor:
23 (1) Consent to the application of subsection (c) of Section 2032A
24 of the Internal Revenue Code, which imposes personal liability
25 for payment of the tax under that Section.
26 (2) Consent to the application of Section 6324A of the Internal
27 Revenue Code, which attaches a lien to property to secure
28 payment of taxes deferred under Section 6166 of the Internal
29 Revenue Code.
30 (3) Any other consents, waivers, or powers of attorney provided
31 for under the Internal Revenue Code.
32 (4) Waivers of notice permissible with reference to proceedings
33 under IC 29-1.
34 (5) Consents, waivers of notice, or powers of attorney under any
35 statute, including the Indiana adjusted gross income tax law
36 (IC 6-3).
37 (6) Consent to unsupervised administration as provided in
38 IC 29-1-7.5.
39 (7) Federal and state income tax returns.
40 (8) Consent to medical or other professional care, treatment, or
41 advice for the minor's health and welfare.
42 (9) Consent to the appointment of a special administrator for
EH 1208—LS 6175/DI 55 21
1 the purposes of a wrongful death claim.
2 SECTION 18. IC 29-3-6-1, AS AMENDED BY P.L.178-2011,
3 SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
4 JULY 1, 2022]: Sec. 1. (a) When a petition for appointment of a
5 guardian or for the issuance of a protective order is filed with the court,
6 notice of the petition and the hearing on the petition shall be given
7 through the E-filing System of the Indiana Courts or by first class
8 postage prepaid mail as follows:
9 (1) If the petition is for the appointment of a successor guardian,
10 notice shall be given unless the court, for good cause shown,
11 orders that notice is not necessary.
12 (2) If the petition is for the appointment of a temporary guardian,
13 notice shall be given as required by IC 29-3-3-4.
14 (3) If the subject of the petition is a minor, notice of the petition
15 and the hearing on the petition shall be given to the following
16 persons whose whereabouts can be determined upon reasonable
17 inquiry:
18 (A) The minor, if at least fourteen (14) years of age, unless the
19 minor has signed the petition.
20 (B) Any living parent of the minor, unless parental rights have
21 been terminated by a court order.
22 (C) Any person alleged to have had the principal care and
23 custody of the minor during the sixty (60) days preceding the
24 filing of the petition.
25 (D) Any other person that the court directs.
26 (4) If it is alleged that the person is an incapacitated person,
27 notice of the petition and the hearing on the petition shall be given
28 to the following persons whose whereabouts can be determined
29 upon reasonable inquiry:
30 (A) The alleged incapacitated person, the alleged incapacitated
31 person's spouse, and the alleged incapacitated person's adult
32 children, or if none, the alleged incapacitated person's parents.
33 (B) Any person who is serving as a guardian for, or who has
34 the care and custody of, the alleged incapacitated person.
35 (C) In case no person other than the incapacitated person is
36 notified under clause (A), at least one (1) of the persons most
37 closely related by blood or marriage to the alleged
38 incapacitated person.
39 (D) Any person known to the petitioner to be serving as the
40 alleged incapacitated person's attorney-in-fact under a durable
41 power of attorney.
42 (E) Any other person that the court directs.
EH 1208—LS 6175/DI 55 22
1 Notice is not required under this subdivision if the person to be
2 notified waives notice or appears at the hearing on the petition.
3 (b) Whenever a petition (other than one for the appointment of a
4 guardian or for the issuance of a protective order) is filed with the
5 court, notice of the petition and the hearing on the petition shall be
6 given to the following persons, unless they appear or waive notice:
7 (1) The guardian.
8 (2) Any other persons that the court directs, including the
9 following:
10 (A) Any department, bureau, agency, or political subdivision
11 of the United States or of this state that makes or awards
12 compensation, pension, insurance, or other allowance for the
13 benefit of an alleged incapacitated person.
14 (B) Any department, bureau, agency, or political subdivision
15 of this state that may be charged with the supervision, control,
16 or custody of an alleged incapacitated person.
17 SECTION 19. IC 29-3-6-2, AS AMENDED BY P.L.6-2010,
18 SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
19 JULY 1, 2022]: Sec. 2. A copy of the petition shall be attached to the
20 notice, and the notice must be in substantially the following form:
21 NOTICE
22 TO: (name and address of person receiving notice)
23 On (date of hearing) at (time of hearing) in (place of hearing) at
24 (city), Indiana, the (name and address of court) will hold a hearing to
25 determine whether a guardian should be appointed or a protective order
26 should be issued for (name of alleged incapacitated person or minor).
27 A copy of the petition requesting appointment of a guardian or for the
28 issuance of a protective order is attached to this notice.
29 At the hearing the court will determine whether (name of alleged
30 incapacitated person or minor) is an incapacitated person or minor
31 under Indiana law. This proceeding may substantially affect the rights
32 of (name of alleged incapacitated person or minor).
33 If the court finds that (name of alleged incapacitated person or
34 minor) is an incapacitated person or minor, the court at the hearing
35 shall also consider whether (name of proposed guardian, if any) should
36 be appointed as guardian of (name of alleged incapacitated person or
37 minor). The court may, in its discretion, appoint some other qualified
38 person as guardian. The court may also, in its discretion, limit the
39 powers and duties of the guardian to allow (name of alleged
40 incapacitated person or minor) to retain control over certain property
41 and activities. The court may also determine whether a protective order
42 should be entered on behalf of (name of alleged incapacitated person
EH 1208—LS 6175/DI 55 23
1 or minor).
2 (Name of alleged incapacitated person) may attend the hearing and
3 be represented by an attorney. The petition may be heard and
4 determined in the absence of (name of alleged incapacitated person) if
5 the court determines that the presence of (name of alleged
6 incapacitated person) is not required. If (name of alleged incapacitated
7 person) attends the hearing, opposes the petition, and is not represented
8 by an attorney, the court may appoint an attorney to represent (name of
9 alleged incapacitated person). The court may, where required, appoint
10 a guardian ad litem to represent (name of alleged incapacitated person
11 or minor) at the hearing.
12 The court may, on its own motion or on request of any interested
13 person, postpone the hearing to another date and time.
14 ________________________________
15 (signature of clerk of the court)
16 SECTION 20. IC 30-4-6-4 IS AMENDED TO READ AS
17 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 4. Except as provided
18 in section 7 of this chapter and IC 30-4-7, unless the terms of the trust
19 expressly direct that the court is to have continuing jurisdiction over
20 the administration of the trust:
21 (1) a trustee need not docket a trust in the file a copy of the trust
22 instrument as a part of the court's records; of the court
23 (2) nor may the court may not require a trust to be docketed;
24 copy of the trust instrument to be filed as a part of the court's
25 records; and
26 (2) (3) with respect to a decedent's estate docketed for the purpose
27 of probate or administration, which either establishes a trust or
28 makes a devise to another trust, if:
29 (A) a decedent's will establishes a trust or contains a devise
30 to a trust; and
31 (B) the will is probated under IC 29-1-7 with or without
32 the appointment of a personal representative for the
33 decedent's estate;
34 the court shall have no continuing jurisdiction over the
35 administration of the trust after the will is probated or after any
36 distribution from the decedent's estate is paid or delivered to the
37 trustee.
38 SECTION 21. IC 30-4-6-7 IS AMENDED TO READ AS
39 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 7. (Docketing (Filing
40 Copy of Trust Instrument as Part of Proceeding)
41 (a) If it is necessary to the determination of any issue of law or fact
42 in a proceeding, the court may direct that a copy of the trust instrument,
EH 1208—LS 6175/DI 55 24
1 if any, be kept in its records. In any proceeding under IC 30-2-14,
2 IC 30-2-15, or this article, any petitioner or other interested
3 person, including but not limited to a trustee or beneficiary, may
4 file a copy of the trust instrument for the trust with the court, to
5 make the trust's terms a part of the court's records. If there is a
6 dispute about whether the trust has been amended or restated or
7 about which version of a trust instrument is a valid version, two (2)
8 or more parties may file copies of different trust instruments or
9 amendments so that the court is aware of their contents.
10 (b) Permissible methods for filing a copy of the trust instrument
11 with the court under subsection (a) include filing the copy as an
12 exhibit or attachment to a petition for substantive relief under this
13 article. A separate petition to "docket" the trust or to permit the
14 filing of a copy of the trust instrument is not required.
15 (c) Upon the filing of a copy of the trust instrument with the
16 court, a presumption arises that the trust's terms have been
17 properly presented to the court. The presumption may be rebutted
18 on a showing that:
19 (1) the court lacks subject matter jurisdiction over the trust;
20 or
21 (2) the proceeding has not been filed in the proper venue
22 under section 3 of this chapter.
23 The filing of a copy of a trust instrument under this section does
24 not preclude any interested person from asserting claims or
25 defenses regarding the validity, interpretation, or administration
26 of the trust or from cross-petitioning for relief under this title.
27 (d) If:
28 (1) a trustee, beneficiary, or other interested person files a
29 proceeding under IC 30-2-14, IC 30-2-15, or this article with
30 respect to a trust; and
31 (2) a copy of the trust instrument is not filed with the court
32 under subsection (a);
33 the court may order any party to file a copy of the trust instrument
34 as a condition to entertaining or hearing a petition for substantive
35 relief with respect to the trust.
36 (b) (e) The filing of the trust instrument under subsection (a) of this
37 section shall not result in continuing supervisory jurisdiction by the
38 court. Upon conclusion of the proceeding, unless otherwise ordered
39 by the court, the clerk shall remove the trust instrument shall be
40 removed from the court's records.
41 SECTION 22. IC 30-5-4-1.9, AS ADDED BY P.L.185-2021,
42 SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
EH 1208—LS 6175/DI 55 25
1 JULY 1, 2022]: Sec. 1.9. (a) Subject to the Indiana Rules of Evidence
2 and the Indiana Rules of Trial Procedure:
3 (1) a video or audio recording of a principal captured or made
4 either before or after the execution of a power of attorney; or
5 (2) a video recording, one (1) or more photographic images, or an
6 audio recording capture made during part or all of the execution
7 of a power of attorney;
8 may be admissible as evidence under this section.
9 (b) Recordings or images described in subsection (a) may be
10 admissible as evidence of the following:
11 (1) The proper execution of a power of attorney.
12 (2) The intentions of the principal.
13 (3) The mental state or capacity of a principal.
14 (4) The authenticity of a power of attorney.
15 (5) Matters that are determined by a court to be relevant to the
16 probate validity or enforceability of a power of attorney.
17 SECTION 23. IC 30-5-11-3, AS AMENDED BY P.L.185-2021,
18 SECTION 24, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
19 JULY 1, 2022]: Sec. 3. The following terms are defined for this
20 chapter:
21 (1) "Affidavit of regularity" means an affidavit executed by a
22 custodian or other person under section 9 of this chapter with
23 respect to the electronic record for an electronic power of attorney
24 or a complete converted copy of an electronic power of attorney.
25 (2) "Complete converted copy" means a document in any format
26 that:
27 (A) can be visually viewed in its entirety on a monitor or other
28 display device;
29 (B) can be printed; and
30 (C) contains the text of an electronic power of attorney and a
31 readable copy of any associated document integrity evidence
32 that may be a part of or attached to the electronic power of
33 attorney.
34 (3) "Custodian" means a person other than:
35 (A) the principal who executed the electronic power of
36 attorney;
37 (B) an attorney; or
38 (C) a person who is named in the electronic power of attorney
39 as an attorney in fact or successor attorney in fact under the
40 power of attorney.
41 (4) "Custody" means the authorized possession and control of at
42 least one (1) of the following:
EH 1208—LS 6175/DI 55 26
1 (A) A complete copy of the electronic record for the electronic
2 power of attorney.
3 (B) A complete converted copy of the electronic power of
4 attorney if the complete electronic record has been lost or
5 destroyed or the electronic power of attorney has been
6 revoked.
7 (5) "Directed paralegal" means a nonlawyer assistant who is
8 employed, retained, or otherwise associated with a licensed
9 attorney or law firm and whose work is directly supervised by a
10 licensed attorney, as required by Rule 5.3 of the Rules of
11 Professional Conduct.
12 (6) "Document integrity evidence" means the part of the
13 electronic record for the electronic power of attorney that:
14 (A) is created and maintained electronically;
15 (B) includes digital markers showing that the electronic power
16 of attorney has not been altered after its initial execution by
17 the principal;
18 (C) is logically associated with the electronic power of
19 attorney in a tamper evident manner so that any change made
20 to the text of the electronic power of attorney after its
21 execution is visibly perceptible when the electronic record is
22 displayed or printed;
23 (D) will generate an error message, invalidate an electronic
24 signature, make the electronic record unreadable, or otherwise
25 display evidence that some alteration was made to the
26 electronic power of attorney after its execution; and
27 (E) displays the following information:
28 (i) The city and state in which, and the date and time at
29 which, the electronic power of attorney was executed by the
30 principal.
31 (ii) The name of the principal.
32 (iii) The name and address of the person responsible for
33 marking the principal's signature on the electronic power of
34 attorney at the principal's direction and in the principal's
35 presence, as applicable.
36 (iv) A copy of or a link to the electronic signature of the
37 principal on the electronic power of attorney.
38 (v) A general description of the type of identity verification
39 evidence used to verify the principal's identity.
40 (vi) The content of the cryptographic hash or unique code
41 used to complete the electronic record and make the
42 electronic power of attorney tamper evident if a public key
EH 1208—LS 6175/DI 55 27
1 infrastructure or a similar secure technology was used to
2 sign or authenticate the electronic power of attorney and if
3 the vendor or software for the technology makes inclusion
4 feasible.
5 Document integrity evidence may, but is not required to, contain
6 other information about the electronic power of attorney such as
7 a unique document number, client number, or other identifier that
8 an attorney or custodian assigns to the electronic power of
9 attorney or a link to a secure Internet web site where a complete
10 copy of the electronic power of attorney is accessible. The title,
11 heading, or label, if any, that is assigned to the document integrity
12 evidence (such as "certificate of completion", "audit trail", or
13 "audit log") is immaterial.
14 (7) "Electronic" has the meaning set forth in IC 26-2-8-102.
15 (8) "Electronic power of attorney" means a power of attorney
16 created by a principal that:
17 (A) is initially created and maintained as an electronic record;
18 (B) contains the electronic signature of the principal creating
19 the power of attorney;
20 (C) contains the date and time of the electronic signature of the
21 principal creating the power of attorney; and
22 (D) is either:
23 (i) notarized; or
24 (ii) signed in the presence of witnesses under sections
25 4(a)(2), 4.3, 4.5, 4.7, and 4.9 of this chapter.
26 The term includes an amendment to or a restatement of the power
27 of attorney if the amendment or restatement complies with the
28 requirements described in section 5 of this chapter.
29 (9) "Electronic record" has the meaning set forth in
30 IC 26-2-8-102. The term may include one (1) or both of the
31 following:
32 (A) The document integrity evidence associated with an
33 electronic power of attorney.
34 (B) The identity verification evidence of the principal who
35 executed the electronic power of attorney.
36 (10) "Electronic signature" has the meaning set forth in
37 IC 26-2-8-102.
38 (11) "Executed" means the signing of a power of attorney. The
39 term includes the use of an electronic signature.
40 (12) "Identity verification evidence" means either:
41 (A) a copy of a government issued photo identification card
42 belonging to the principal; or
EH 1208—LS 6175/DI 55 28
1 (B) any other information that verifies the identity of the
2 principal if derived from one (1) or more of the following
3 sources:
4 (i) A knowledge based authentication method.
5 (ii) A physical device.
6 (iii) A digital certificate using a public key infrastructure.
7 (iv) A verification or authorization code sent to or used by
8 the principal.
9 (v) Biometric identification.
10 (vi) Any other commercially reasonable method for
11 verifying the principal's identity using current or future
12 technology.
13 (13) "Logically associated" means electronically connected, cross
14 referenced, or linked in a reliable manner.
15 (14) "Observe" means to perceive another's actions or expressions
16 of intent through the senses of eyesight or hearing, or both. The
17 term includes perceptions involving the use of technology or
18 learned skills to:
19 (A) assist the person's capabilities of eyesight or hearing, or
20 both; or
21 (B) compensate for an impairment of the person's capabilities
22 of eyesight or hearing, or both.
23 (15) "Observing" has the meaning set forth in subdivision (14).
24 (16) "Sign" means valid use of a properly executed electronic
25 signature.
26 (17) "Signature" means the authorized use of the principal's name
27 to authenticate a power of attorney. The term includes an
28 electronic signature.
29 (18) "Tamper evident" means the feature of an electronic record,
30 such as an electronic power of attorney or document integrity
31 evidence for an electronic power of attorney, that will cause the
32 fact of any alteration or tampering with the electronic record, after
33 it is created or signed, to be perceptible to any person viewing the
34 electronic record when it is printed on paper or viewed on a
35 monitor or other display device. The term applies even if the
36 nature or specific content of the alteration is not perceptible.
37 (19) "Traditional paper power of attorney" means a power of
38 attorney or an amendment to or a restatement of a power of
39 attorney that is signed by the principal on paper.
40 SECTION 24. IC 34-23-1-2 IS AMENDED TO READ AS
41 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 2. (a) As used in this
42 section, "adult person" means:
EH 1208—LS 6175/DI 55 29
1 (1) an unmarried individual:
2 (1) (A) who does not have any dependents; and
3 (2) (B) who is not a child (as defined in IC 34-23-2-1); or
4 (2) a married individual:
5 (A) who does not have any dependents; and
6 (B) whose death was caused by the married individual's
7 spouse.
8 (b) If the death of an adult person is caused by the wrongful act or
9 omission of another person, only the personal representative of the
10 adult person may maintain an action against the person whose wrongful
11 act or omission caused the death of the adult person.
12 (c) In an action to recover damages for the death of an adult person,
13 the damages:
14 (1) must be in an amount determined by a:
15 (A) court; or
16 (B) jury;
17 (2) may not include:
18 (A) damages awarded for a person's grief; or
19 (B) punitive damages; and
20 (3) may include but are not limited to the following:
21 (A) Reasonable medical, hospital, funeral, and burial expenses
22 necessitated by the wrongful act or omission that caused the
23 adult person's death.
24 (B) Loss of the adult person's love and companionship.
25 (d) Damages awarded under subsection (c)(3)(A) for medical,
26 hospital, funeral, and burial expenses inure to the exclusive benefit of
27 the adult person's estate for the payment of the expenses. The
28 remainder of the damages inure to the exclusive benefit of a
29 nondependent parent or nondependent child of the adult person.
30 (e) Aggregate damages that may be recovered under subsection
31 (c)(3)(B) may not exceed three hundred thousand dollars ($300,000).
32 A jury may not be advised of the monetary limits placed on damages
33 under this subsection. If the jury awards the plaintiff damages under
34 subsection (c)(3)(B) in an amount that exceeds three hundred thousand
35 dollars ($300,000), the court shall reduce that part of the damages
36 awarded to the plaintiff to three hundred thousand dollars ($300,000).
37 (f) A parent or child who wishes to recover damages under this
38 section has the burden of proving that the parent or child had a
39 genuine, substantial, and ongoing relationship with the adult person
40 before the parent or child may recover damages.
41 (g) In an action brought under this section, a court or a jury may not
42 hear evidence concerning the lost earnings of the adult person that
EH 1208—LS 6175/DI 55 30
1 occur as a result of the wrongful act or omission.
2 (h) In awarding damages under this section to more than one (1)
3 person, the court or the jury shall specify the amount of the damages
4 that should be awarded to each person.
5 (i) In an action brought under this section, the trier of fact shall
6 make a separate finding with respect to damages awarded under
7 subsection (c)(3)(B).
8 SECTION 25. [EFFECTIVE JULY 1, 2022] IC 34-23-1-2, as
9 amended by this act, applies to a cause of action that accrues after
10 June 30, 2022.
EH 1208—LS 6175/DI 55 31
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
_____
COMMITTEE REPORT
Madam President: The Senate Committee on Judiciary, to which
was referred House Bill No. 1208, has had the same under
consideration and begs leave to report the same back to the Senate with
the recommendation that said bill be AMENDED as follows:
Page 1, line 1, delete "ADDED BY P.L.50-2021," and insert
"AMENDED BY THE TECHNICAL CORRECTIONS BILL OF THE
2022 GENERAL ASSEMBLY,".
Page 1, line 2, delete "SECTION 63,".
Page 4, between lines 25 and 26, begin a new paragraph and insert:
"SECTION 5. IC 29-1-2-12.1, AS AMENDED BY P.L.238-2005,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2022]: Sec. 12.1. (a) A person is a constructive trustee of any
property that is acquired by the person or that the person is otherwise
entitled to receive as a result of an individual's death, including
property from a trust, if that person has been found guilty, or guilty but
mentally ill, of murder, causing suicide, or voluntary manslaughter,
because of the individual's death. The following definitions apply
throughout this section:
(1) "Culpable person" means any of the following:
(A) A person who:
(i) has been charged with causing an unlawful death; and
(ii) is found guilty, or guilty but mentally ill, on a charge
of causing an unlawful death under a guilty plea or
guilty verdict under IC 35-35-1 or IC 35-36-2.
(B) A person who is determined by a preponderance of the
evidence in a civil action to have knowingly or intentionally
caused an unlawful death.
(C) The estate of a person who:
(i) is described in clause (A) or (B); and
EH 1208—LS 6175/DI 55 32
(ii) died after causing an unlawful death.
(2) "Decedent" means the victim of an unlawful death.
(3) "Unlawful death" means a death resulting from murder,
voluntary manslaughter, or suicide caused by a person other
than the decedent. The term includes a death resulting from
an offense under IC 35-42-1-1, IC 35-42-1-2, or IC 35-42-1-3.
(b) A judgment of conviction is conclusive in a subsequent civil
action to have the a culpable person declared a constructive trustee
under subsection (e).
(c) A culpable person is a constructive trustee of any property
that is acquired by the culpable person or that the culpable person
is entitled to receive as a result of an unlawful death, including the
following:
(1) Property from a trust.
(2) Property from a transfer on death transfer under
IC 32-17-14.
(3) Proceeds under a policy or certificate of life insurance on
the life of the decedent, if the culpable person:
(A) is a beneficiary; and
(B) would otherwise be entitled to receive the proceeds;
under the policy or certificate.
(4) Proceeds under a policy or certificate of life insurance on
the life of the culpable person, if the decedent:
(A) was a beneficiary; and
(B) would otherwise be entitled to receive the proceeds;
under the policy or certificate.
(5) The decedent's interest in joint tenancy property that
would otherwise pass by survivorship to the culpable person
as a result of the decedent's death.
(6) Property passing under a contractual agreement upon the
decedent's death.
(d) If a culpable person dies after causing an unlawful death, life
insurance proceeds that would otherwise be subject to a
constructive trust under subsection (c)(3) or (c)(4) may be paid in
the same manner as the life insurance proceeds would be paid if the
culpable person had predeceased the decedent.
(b) (e) A civil action may be initiated by an interested person to
have a culpable person declared a constructive trustee of property that
is acquired by the culpable person, or that the culpable person is
otherwise entitled to receive including property from a trust, as a result
of an individual's death, if: unlawful death.
(1) the person has been charged with murder, causing suicide, or
EH 1208—LS 6175/DI 55 33
voluntary manslaughter, because of the individual's death; and
(2) the person has been found not responsible by reason of
insanity at the time of the crime.
If a civil action is initiated under this subsection, the court shall declare
that the culpable person is a constructive trustee of the property if by
a preponderance of the evidence it is determined that the culpable
person killed or caused the suicide of the individual. unlawful death.
(c) (f) If a constructive trust is established under this section, the
property that is subject to the trust may be used only to benefit those
persons, other than the culpable person and constructive trustee,
legally entitled to the property, determined as if the constructive trustee
had died immediately before the decedent. However, if any property
that the constructive trustee acquired as a result of the decedent's
unlawful death has been sold to an innocent purchaser for value who
acted in good faith, that property is no longer subject to the
constructive trust, but the property received from the purchaser under
the transaction becomes subject to the constructive trust.".
Page 6, reset in roman lines 38 through 39.
Page 6, delete lines 40 through 42.
Delete pages 7 through 8.
Page 14, line 30, after "sought;" insert "and".
Page 23, reset in roman line 22.
Page 23, delete lines 23 through 26.
Page 29, after line 8, begin a new paragraph and insert:
"SECTION 25. IC 34-23-1-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 2. (a) As used in this
section, "adult person" means:
(1) an unmarried individual:
(1) (A) who does not have any dependents; and
(2) (B) who is not a child (as defined in IC 34-23-2-1); or
(2) a married individual:
(A) who does not have any dependents; and
(B) whose death was caused by the married individual's
spouse.
(b) If the death of an adult person is caused by the wrongful act or
omission of another person, only the personal representative of the
adult person may maintain an action against the person whose wrongful
act or omission caused the death of the adult person.
(c) In an action to recover damages for the death of an adult person,
the damages:
(1) must be in an amount determined by a:
(A) court; or
EH 1208—LS 6175/DI 55 34
(B) jury;
(2) may not include:
(A) damages awarded for a person's grief; or
(B) punitive damages; and
(3) may include but are not limited to the following:
(A) Reasonable medical, hospital, funeral, and burial expenses
necessitated by the wrongful act or omission that caused the
adult person's death.
(B) Loss of the adult person's love and companionship.
(d) Damages awarded under subsection (c)(3)(A) for medical,
hospital, funeral, and burial expenses inure to the exclusive benefit of
the adult person's estate for the payment of the expenses. The
remainder of the damages inure to the exclusive benefit of a
nondependent parent or nondependent child of the adult person.
(e) Aggregate damages that may be recovered under subsection
(c)(3)(B) may not exceed three hundred thousand dollars ($300,000).
A jury may not be advised of the monetary limits placed on damages
under this subsection. If the jury awards the plaintiff damages under
subsection (c)(3)(B) in an amount that exceeds three hundred thousand
dollars ($300,000), the court shall reduce that part of the damages
awarded to the plaintiff to three hundred thousand dollars ($300,000).
(f) A parent or child who wishes to recover damages under this
section has the burden of proving that the parent or child had a
genuine, substantial, and ongoing relationship with the adult person
before the parent or child may recover damages.
(g) In an action brought under this section, a court or a jury may not
hear evidence concerning the lost earnings of the adult person that
occur as a result of the wrongful act or omission.
(h) In awarding damages under this section to more than one (1)
person, the court or the jury shall specify the amount of the damages
that should be awarded to each person.
(i) In an action brought under this section, the trier of fact shall
make a separate finding with respect to damages awarded under
subsection (c)(3)(B).
SECTION 26. [EFFECTIVE JULY 1, 2022] IC 34-23-1-2, as
amended by this act, applies to a cause of action that accrues after
June 30, 2022.".
Renumber all SECTIONS consecutively.
and when so amended that said bill do pass.
(Reference is to HB 1208 as printed January 13, 2022.)
EH 1208—LS 6175/DI 55 35
BROWN L, Chairperson
Committee Vote: Yeas 11, Nays 0.
EH 1208—LS 6175/DI 55