Indiana Senate Bill SB0018 Comm Sub / Bill

                    *SB0018.1*
January 12, 2024
SENATE BILL No. 18
_____
DIGEST OF SB 18 (Updated January 10, 2024 6:49 pm - DI 149)
Citations Affected:  IC 16-36; IC 23-18; IC 29-1; IC 29-3; IC 30-4;
IC 30-5; IC 31-9; IC 31-15; IC 32-17; IC 32-21; IC 36-2.
Synopsis:  Various probate matters. Expands the definition of a health
care representative. Creates a procedure to transfer the interest of
certain single member, limited liability companies to a legatee or heir
of the member upon the member's death.  Provides that certain
provisions in a will or revocable trust in favor of the testator's or trust
settlor's former spouse are revoked upon dissolution or annulment of
the marriage. Requires an affiant to send a copy of certain affidavits
concerning a small estate to the estate recovery unit of the office of
Medicaid policy and planning (unit). Requires a fiduciary to send a
copy of a verified statement concerning the closing of a decedent's
estate to the unit if the decedent was at least 55 years of age at the time
of death and if a notice of estate administration was not previously
served upon the unit. Provides that a claim against a decedent's estate
by the unit is forever barred if the unit fails to take certain actions
within a specified period of time. Provides that a court may order a
convicted felon to serve as a personal representative under certain
circumstances. Provides that a personal representative or a trustee is
not required to distribute particular assets based upon the potential gain
or loss that a distributee would realize if the assets were sold. Provides
that a verified petition for the issuance of a confidential health
disclosure order must state whether the alleged incapacitated person
cannot provide or has refused to provide written authorization for
disclosure of certain medical information. Provides that a document
creating a power of attorney that does not contain a notary and
preparation statement may be recorded with the county recorder if the
(Continued next page)
Effective:  July 1, 2024.
Brown L, Koch
January 8, 2024, read first time and referred to Committee on Judiciary.
January 11, 2024, amended, reported favorably — Do Pass.
SB 18—LS 6017/DI 149 Digest Continued
document meets certain criteria. Provides signature formats for an
attorney in fact to use when signing an instrument on behalf of a
principal. Provides recording requirements when including cross-
references to a previously recorded document. Defines a "qualified real
property order". Creates a new form of recordable affidavit and creates
a qualified real property order to provide missing legal descriptions and
tax parcel identification numbers for real property that is transferred or
divided. Provides a process for filing and recording the affidavit and a
qualified real property order. Requires the endorsement of the county
auditor to record a transfer on death deed and instrument. Specifies
who an owner may designate as a grantee in a beneficiary designation
instrument. Clarifies the form and scope of a transfer on death
instrument. Makes conforming and technical changes. (The introduced
version of this bill was prepared by the probate code study
commission.)
SB 18—LS 6017/DI 149SB 18—LS 6017/DI 149 January 12, 2024
Second Regular Session of the 123rd General Assembly (2024)
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 2023 Regular Session of the General Assembly.
SENATE BILL No. 18
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 16-36-7-13, AS ADDED BY P.L.50-2021,
2 SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2024]: Sec. 13. As used in this chapter, "health care
4 representative" means a competent adult or other person designated
5 by a declarant in an advance directive to:
6 (1) make health care decisions; and
7 (2) receive health information;
8 regarding the declarant. The term includes a person who receives and
9 holds validly delegated authority from a designated health care
10 representative.
11 SECTION 2. IC 23-18-6-4, AS AMENDED BY P.L.156-2023,
12 SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
13 JULY 1, 2024]: Sec. 4. (a) Unless otherwise provided in a written
14 operating agreement, a limited liability company existing under this
15 article on or before June 30, 1999, is governed by this section.
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1 (b) Except as otherwise provided in a written operating agreement,
2 if a limited liability company has at least two (2) members, an assignee
3 of an interest may become a member only if the other members
4 unanimously consent. If a limited liability company has only one (1)
5 member, an assignee of the entire interest may become a member:
6 (1) under the terms of an agreement between the assignor and the
7 assignee; or
8 (2) except as otherwise provided in a written operating agreement
9 by a specific reference to this subsection or as otherwise provided
10 in an agreement between the assignor and the assignee,
11 automatically upon the voluntary assignment by the sole member
12 of all the member's interest to a single assignee that the member
13 consented to at the time of the assignment and that was not
14 affected by foreclosure or other similar legal process.
15 The consent of a member may be evidenced in any manner specified
16 in writing in an operating agreement, but in the absence of a
17 specification, consent must be evidenced by a written instrument, dated
18 and signed by the member.
19 (c) If:
20 (1) a limited liability company has one (1) member;
21 (2) the member of the limited liability company dies;
22 (3) the deceased member's interest in the limited liability
23 company is not registered in beneficiary form under
24 IC 32-17-14; and
25 (4) the limited liability company does not have a written
26 operating agreement that controls or specifies the transfer or
27 other disposition of the deceased member's interest;
28 the deceased member's interest passes as described in subsection
29 (d).
30 (d) This subsection applies to the transfer of a deceased
31 member's interest under the circumstances described in subsection
32 (c). Unless otherwise provided in a written operating agreement or
33 a valid disclaimer under IC 32-17.5, the deceased member's
34 interest in a limited liability company passes automatically upon
35 death to:
36 (1) a legatee identified in the deceased member's will admitted
37 to probate under IC 29-1-7; or
38 (2) the deceased member's heirs under IC 29-1-2-1 if the
39 deceased member died intestate.
40 A transfer of an interest under this subsection is subject to
41 IC 29-1-7-23 and does not affect the enforceability of a timely filed
42 claim by a creditor against the estate of the deceased member. A
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1 legatee or an heir is automatically admitted as a member of the
2 limited liability company under this subsection.
3 (e) If a personal representative is appointed under IC 29-1-10
4 for the estate of a deceased member described in subsection (c), the
5 personal representative possesses and may exercise all rights and
6 powers of the deceased member's interest before the interest of the
7 deceased member is distributed to the deceased member's legatees
8 or heirs under this section.
9 (c) (f) An assignee who becomes a member:
10 (1) has, to the extent assigned, the rights and powers and is
11 subject to the restrictions and liabilities of a member under the
12 articles of organization, any operating agreement, and this article;
13 and
14 (2) is liable for any obligations of the member's assignor for
15 unpaid contributions under IC 23-18-5-1 or for any wrongful
16 distributions under IC 23-18-5-7.
17 However, the assignee is not obligated for liabilities of which the
18 assignee had no knowledge at the time the assignee became a member
19 and that could not be ascertained from a written operating agreement.
20 (d) (g) Whether or not an assignee of an interest becomes a member,
21 the assignor is not released from the assignor's liability to the limited
22 liability company for unpaid contributions under IC 23-18-5-1 or for
23 any wrongful distributions under IC 23-18-5-7 that are solely a result
24 of the assignment.
25 (e) (h) Unless otherwise provided in a written operating agreement,
26 a member who assigns the member's entire interest in the limited
27 liability company ceases to be a member or to have the power to
28 exercise any rights of a member when an assignee of the member's
29 interest becomes a member with respect to the assigned interest.
30 SECTION 3. IC 23-18-6-4.1, AS AMENDED BY P.L.156-2023,
31 SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
32 JULY 1, 2024]: Sec. 4.1. (a) A limited liability company formed under
33 this article after June 30, 1999, is governed by this section.
34 (b) Except as otherwise provided in a written operating agreement,
35 if a limited liability company has at least two (2) members, an assignee
36 of an interest may become a member only if the other members
37 unanimously consent. If a limited liability company has only one (1)
38 member, an assignee of the entire interest may become a member:
39 (1) in accordance with the terms of an agreement between the
40 assignor and the assignee; or
41 (2) except as otherwise provided in a written operating agreement
42 by a specific reference to this subsection or as otherwise provided
SB 18—LS 6017/DI 149 4
1 in an agreement between the assignor and the assignee,
2 automatically upon the voluntary assignment by the sole member
3 of all of the member's interest to a single assignee that the
4 member consented to at the time of the assignment and that was
5 not affected by foreclosure or other similar legal process.
6 The consent of a member may be evidenced in any manner specified
7 in writing in an operating agreement, but in the absence of a
8 specification, consent must be evidenced by a written instrument, dated
9 and signed by the member.
10 (c) If:
11 (1) a limited liability company has one (1) member;
12 (2) the member of the limited liability company dies;
13 (3) the deceased member's interest in the limited liability
14 company is not registered in beneficiary form under
15 IC 32-17-14; and
16 (4) the limited liability company does not have a written
17 operating agreement that controls or specifies the transfer or
18 other disposition of the deceased member's interest;
19 the deceased member's interest passes as described in subsection
20 (d).
21 (d) This subsection applies to the transfer of a deceased
22 member's interest under the circumstances described in subsection
23 (c). Unless otherwise provided in a written operating agreement or
24 a valid disclaimer under IC 32-17.5, the deceased member's
25 interest in a limited liability company passes automatically upon
26 death to:
27 (1) a legatee identified in the deceased member's will admitted
28 to probate under IC 29-1-7; or
29 (2) the deceased member's heirs under IC 29-1-2-1 if the
30 deceased member died intestate.
31 A transfer of an interest under this subsection is subject to
32 IC 29-1-7-23 and does not affect the enforceability of a timely filed
33 claim by a creditor against the estate of the deceased member. A
34 legatee or an heir is automatically admitted as a successor member
35 or a member of the limited liability company under this subsection.
36 (e) If a personal representative is appointed under IC 29-1-10
37 for the estate of a deceased member described in subsection (c), the
38 personal representative possesses and may exercise all rights and
39 powers of the deceased member's interest before the interest of the
40 deceased member is distributed to the deceased member's legatees
41 or heirs under this section.
42 (c) (f) An assignee who becomes a member:
SB 18—LS 6017/DI 149 5
1 (1) has, to the extent assigned, the rights and powers and is
2 subject to the restrictions and liabilities of a member under the
3 articles of organization, any operating agreement, and this article;
4 and
5 (2) is liable for any obligations of the member's assignor for
6 unpaid contributions under IC 23-18-5-1 or for any wrongful
7 distributions under IC 23-18-5-7.
8 However, the assignee is not obligated for liabilities of which the
9 assignee had no knowledge at the time the assignee became a member
10 and that could not be ascertained from a written operating agreement.
11 (d) (g) Whether or not an assignee of an interest becomes a member,
12 the assignor is not released from the assignor's liability to the limited
13 liability company for unpaid contributions under IC 23-18-5-1 or for
14 any wrongful distributions under IC 23-18-5-7 that are solely a result
15 of the assignment.
16 (e) (h) Unless otherwise provided in a written operating agreement,
17 a member who assigns the member's entire interest in the limited
18 liability company ceases to be a member or to have the power to
19 exercise any rights of a member.
20 SECTION 4. IC 23-18-6-5 IS AMENDED TO READ AS
21 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 5. (a) A person ceases
22 to be a member of a limited liability company upon the occurrence of
23 any of the following events:
24 (1) The person withdraws from the limited liability company as
25 provided in section 6 of this chapter.
26 (2) The person ceases to be a member as provided in section 4(e)
27 or 4.1(e) 4(h) or 4.1(h) of this chapter.
28 (3) The person is removed as a member:
29 (A) in accordance with the operating agreement; or
30 (B) unless otherwise provided in a written operating
31 agreement, by the affirmative vote, approval, or consent of a
32 majority in interest of the members after the member has
33 assigned the member's entire interest in the limited liability
34 company.
35 (4) Unless otherwise provided in a written operating agreement or
36 with the written consent of all other members, in the case of a
37 member who is an individual, the individual's death.
38 (5) Unless otherwise provided in a written operating agreement or
39 with the written consent of all other members, in the case of a
40 member who is acting as a member by virtue of being a trustee of
41 a trust, the termination of the trust, but not merely the substitution
42 of a new trustee.
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1 (6) Unless otherwise provided in a written operating agreement or
2 with the written consent of all other members, in the case of a
3 member that is a partnership, limited partnership, or another
4 limited liability company, the dissolution and commencement of
5 winding up of the partnership, limited partnership, or limited
6 liability company.
7 (7) Unless otherwise provided in a written operating agreement or
8 with the written consent of all other members, in the case of a
9 member that is a corporation, the dissolution of the corporation.
10 (8) Unless otherwise provided in a written operating agreement or
11 with the written consent of all other members, in the case of a
12 member that is an estate, the distribution by the fiduciary of the
13 estate's entire interest in the limited liability company.
14 (b) A written operating agreement may provide for other events that
15 result in a person ceasing to be a member of the limited liability
16 company, including insolvency, bankruptcy, and adjudicated
17 incompetency.
18 SECTION 5. IC 23-18-9-1 IS AMENDED TO READ AS
19 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Unless otherwise
20 provided in a written operating agreement, a limited liability company
21 existing under this article on or before June 30, 1999, is governed by
22 this section.
23 (b) A limited liability company is dissolved and its affairs must be
24 wound up on the first of the following to occur:
25 (1) At the time or on the occurrence of events specified in writing
26 in the articles of organization or operating agreement.
27 (2) Written consent of all the members.
28 (3) Except as provided in IC 23-18-6-4(c), upon the death of
29 the member of a limited liability company that had one (1)
30 member, an event of dissociation occurs with respect to a
31 member, unless the business of the limited liability company is
32 continued by the consent of all the remaining members not more
33 than ninety (90) days after the occurrence of the event or as
34 otherwise provided in writing in the articles of organization or
35 operating agreement.
36 (4) Entry of a decree of judicial dissolution under section 2 of this
37 chapter.
38 SECTION 6. IC 23-18-9-1.1, AS AMENDED BY P.L.40-2013,
39 SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
40 JULY 1, 2024]: Sec. 1.1. (a) A limited liability company formed under
41 this article after June 30, 1999, is governed by this section.
42 (b) A limited liability company is dissolved and the limited liability
SB 18—LS 6017/DI 149 7
1 company's affairs must be wound up when the first of the following
2 occurs:
3 (1) At the time or on the occurrence of events specified in writing
4 in the articles of organization or operating agreement.
5 (2) Subject to IC 23-18-4-4(a)(4)(A), for a limited liability
6 company:
7 (A) formed under this article after June 30, 2013, the
8 unanimous consent of the members, unless a written operating
9 agreement provides that dissolution may be authorized by the
10 vote of members holding fewer than all the interests in the
11 limited liability company or holding fewer than all interests in
12 one (1) or more classes of members; or
13 (B) formed under this article after June 30, 1999, and before
14 July 1, 2013, if there is:
15 (i) one (1) class or group of members, written consent of
16 two-thirds (2/3) in interest of the members; or
17 (ii) more than one (1) class or group of members, written
18 consent of two-thirds (2/3) in interest of each class or group
19 of members.
20 (3) Entry of a decree of judicial dissolution under section 2 of this
21 chapter.
22 (c) Except as provided in IC 23-18-6-4.1(c), upon the death of
23 the member of a limited liability company that had one (1)
24 member, a limited liability company is dissolved and the limited
25 liability company's affairs must be wound up if there are no members.
26 However, this subsection does not apply if, under a provision in the
27 operating agreement, not more than ninety (90) days after the
28 occurrence of the event that caused the last remaining member to cease
29 to be a member, either:
30 (1) the personal representative of the last remaining member
31 agrees in writing:
32 (A) to continue the business of the limited liability company;
33 and
34 (B) to the admission of the personal representative or the
35 personal representative's nominee or designee to the limited
36 liability company as a member; or
37 (2) a member is admitted to the limited liability company in the
38 manner provided for in the operating agreement specifically for
39 the admission of a member to the limited liability company after
40 the last remaining member ceases to be a member;
41 effective as of the time of the event that caused the last remaining
42 member to cease to be a member.
SB 18—LS 6017/DI 149 8
1 SECTION 7. IC 29-1-5-8, AS AMENDED BY P.L.136-2018,
2 SECTION 214, IS AMENDED TO READ AS FOLLOWS
3 [EFFECTIVE JULY 1, 2024]: Sec. 8. If after making a will the testator
4 is divorced, testator's marriage is dissolved or annulled, all
5 provisions in the will in favor of the testator's former spouse are
6 revoked as of the time of the dissolution or annulment of the
7 marriage. The will provisions remain revoked even if the testator
8 remarries the former spouse. Annulment of the testator's marriage
9 shall have the same effect as a divorce. With this exception, no written
10 will, nor any part of the will, can be revoked by any change in the
11 circumstances or condition of the testator.
12 SECTION 8. IC 29-1-8-1, AS AMENDED BY P.L.151-2022,
13 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
14 JULY 1, 2024]: Sec. 1. (a) Forty-five (45) days after the death of a
15 decedent and upon being presented an affidavit that complies with
16 subsection (b), a person:
17 (1) indebted to the decedent; or
18 (2) having possession of personal property or an instrument
19 evidencing a debt, an obligation, a stock, or a chose in action
20 belonging to the decedent;
21 shall make payment of the indebtedness or deliver the personal
22 property or the instrument evidencing a debt, an obligation, a stock, or
23 a chose in action to a distributee claiming to be entitled to payment or
24 delivery of property of the decedent as alleged in the affidavit.
25 (b) The affidavit required by subsection (a) must be an affidavit
26 made by or on behalf of the distributee and must state the following:
27 (1) That the value of the gross probate estate, wherever located,
28 (less liens, encumbrances, and reasonable funeral expenses) does
29 not exceed:
30 (A) twenty-five thousand dollars ($25,000), for the estate of an
31 individual who dies before July 1, 2006;
32 (B) fifty thousand dollars ($50,000), for the estate of an
33 individual who dies after June 30, 2006, and before July 1,
34 2022; and
35 (C) one hundred thousand dollars ($100,000), for the estate of
36 an individual who dies after June 30, 2022.
37 (2) That forty-five (45) days have elapsed since the death of the
38 decedent.
39 (3) That no application or petition for the appointment of a
40 personal representative is pending or has been granted in any
41 jurisdiction.
42 (4) The name and address of each distributee that is entitled to a
SB 18—LS 6017/DI 149 9
1 share of the property and the part of the property to which each
2 distributee is entitled.
3 (5) That the affiant has notified each distributee identified in the
4 affidavit of the affiant's intention to present an affidavit under this
5 section.
6 (6) That the affiant is entitled to payment or delivery of the
7 property on behalf of each distributee identified in the affidavit.
8 (c) If a motor vehicle or watercraft (as defined in IC 9-13-2-198.5)
9 is part of the estate, nothing in this section shall prohibit a transfer of
10 the certificate of title to the motor vehicle if five (5) days have elapsed
11 since the death of the decedent and no appointment of a personal
12 representative is contemplated. A transfer under this subsection shall
13 be made by the bureau of motor vehicles upon receipt of an affidavit
14 containing a statement of the conditions required by subsection (b)(1)
15 and (b)(6). The affidavit must be duly executed by the distributees of
16 the estate.
17 (d) The affiant:
18 (1) shall send a copy of each affidavit that is sent under this
19 section to the unit, if the decedent was at least fifty-five (55)
20 years of age at the time of death; and
21 (2) may send a copy of each affidavit that is sent under this
22 section to the unit, if the decedent was not at least fifty-five
23 (55) years of age at the time of death.
24 If the affiant does not send a copy of the affidavit to the unit, the
25 affidavit is still enforceable to pay or deliver the property
26 described in the affidavit to the distributee.
27 (d) (e) A transfer agent of a security shall change the registered
28 ownership on the books of a corporation from the decedent to a
29 distributee upon the presentation of an affidavit as provided in
30 subsection (a).
31 (e) (f) For the purposes of subsection (a), an insurance company
32 that, by reason of the death of the decedent, becomes obligated to pay
33 a death benefit to the estate of the decedent is considered a person
34 indebted to the decedent.
35 (f) (g) For purposes of subsection (a), property in a safe deposit box
36 rented by a decedent from a financial institution organized or
37 reorganized under the law of any state (as defined in IC 28-2-17-19) or
38 the United States is considered personal property belonging to the
39 decedent in the possession of the financial institution.
40 (g) (h) For purposes of subsection (a), a distributee has the same
41 rights as a personal representative under IC 32-39 to access a digital
42 asset (as defined in IC 32-39-1-10) of the decedent.
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1 SECTION 9. IC 29-1-8-4, AS AMENDED BY P.L.162-2022,
2 SECTION 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
3 JULY 1, 2024]: Sec. 4. (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) Unless prohibited by order of the court and except for estates
8 being administered by supervised personal representatives, a fiduciary
9 may close an estate administered under the summary procedures of
10 section 3 of this chapter by disbursing and distributing the estate assets
11 to the distributees and other persons entitled to those assets, and by
12 filing with the court, at any time after disbursement and distribution of
13 the estate, a verified statement stating that:
14 (1) to the best knowledge of the fiduciary, the value of the gross
15 probate estate, less liens and encumbrances, did not exceed the
16 sum of:
17 (A) twenty-five thousand dollars ($25,000), for the estate of an
18 individual who dies before July 1, 2006, fifty thousand dollars
19 ($50,000), for the estate of an individual who dies after June
20 30, 2006, and before July 1, 2022, and one hundred thousand
21 dollars ($100,000), for the estate of an individual who dies
22 after June 30, 2022;
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 If the decedent was at least fifty-five (55) years of age at the time
33 of death and a notice of estate administration was not served upon
34 the unit under IC 29-1-7-7(d), the fiduciary shall send a copy of the
35 verified statement under this subsection to the unit by first class
36 mail.
37 (c) If no actions, claims, objections, or proceedings involving the
38 fiduciary are filed in the court within two (2) months after the closing
39 statement is filed, the closing statement filed under this section has the
40 same effect as one filed under IC 29-1-7.5-4, and the appointment of
41 the personal representative or the duties of the fiduciary, as applicable,
42 shall terminate.
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1 (d) A copy of any affidavit recorded under section 3(c) of this
2 chapter must be attached to the closing statement filed under this
3 section.
4 SECTION 10. IC 29-1-10-1, AS AMENDED BY P.L.38-2023,
5 SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
6 JULY 1, 2024]: Sec. 1. (a) Domiciliary letters testamentary or
7 domiciliary letters of general administration may be granted to one (1)
8 or more of the persons mentioned in this subsection, natural or
9 corporate, who are not disqualified, in the following order:
10 (1) To the executor or executors designated in a will that has been
11 admitted to probate.
12 (2) To a surviving spouse who is a devisee in a will that has been
13 admitted to probate.
14 (3) To a devisee in a will that has been admitted to probate.
15 (4) To the surviving spouse, or to the person or persons
16 nominated by the surviving spouse or to the surviving spouse and
17 the person or persons nominated by the surviving spouse.
18 (5) To:
19 (A) an heir;
20 (B) the person or persons nominated by an heir; or
21 (C) an heir and the person or persons nominated by an heir.
22 (6) If there is not a person listed in subdivisions (1) through (5),
23 then to any other qualified person.
24 (b) Except as provided in subsection (g), no person is qualified to
25 serve as a domiciliary personal representative who is:
26 (1) under eighteen (18) years of age;
27 (2) incapacitated unless the incapacity is caused only by:
28 (A) physical illness;
29 (B) physical impairment; or
30 (C) physical infirmity;
31 (3) a convicted felon, either under the laws of the United States or
32 of any state or territory of the United States;
33 (4) a resident corporation not authorized to act as a fiduciary in
34 this state; or
35 (5) a person whom the court finds unsuitable.
36 (c) A nonresident individual or corporate fiduciary may qualify and
37 serve as a joint personal representative with a resident personal
38 representative only by:
39 (1) filing with the court that has jurisdiction of the administration
40 of the decedent's estate a bond in an amount:
41 (A) not less than:
42 (i) the probable value of the estate's personal property; plus
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1 (ii) the estimated rents and profits to be derived from the
2 property in the estate during the probate period; and
3 (B) not greater than the probable gross value of the estate; and
4 (2) otherwise meeting the qualifications of subsection (b).
5 If the court authorizes the joint personal representative to administer
6 the estate without court supervision under IC 29-1-7.5, the court may
7 exercise its discretion under IC 29-1-7.5-2.5(c) to increase, decrease,
8 or waive the bond that the nonresident joint personal representative
9 would otherwise be required to file under this subsection.
10 (d) A nonresident individual who otherwise qualifies under
11 subsection (b) may qualify to serve as a personal representative in
12 Indiana only by filing with the court that has jurisdiction of the
13 administration of the decedent's estate:
14 (1) notice in writing of the individual's acceptance of the
15 appointment as personal representative;
16 (2) notice of the appointment of a resident agent to accept service
17 of process, notices, and other documents; and
18 (3) a bond in an amount:
19 (A) not less than:
20 (i) the probable value of the estate's personal property; plus
21 (ii) the estimated rents and profits to be derived from the
22 property in the estate during the probate period; and
23 (B) not greater than the probable gross value of the estate.
24 If the court authorizes the nonresident personal representative to
25 administer the estate without court supervision under IC 29-1-7.5, the
26 court may exercise its discretion under IC 29-1-7.5-2.5(c) to increase,
27 decrease, or waive the bond that the nonresident personal
28 representative would otherwise be required to file under subdivision
29 (3).
30 (e) If a personal representative becomes a nonresident of this state,
31 the representative remains qualified to serve only if the representative
32 files with the court that has jurisdiction of the administration of the
33 estate a bond in an amount:
34 (1) not less than:
35 (A) the probable value of the estate's personal property; plus
36 (B) the estimated rents and profits to be derived from the
37 property in the estate during the probate period; and
38 (2) not greater than the probable gross value of the estate.
39 If the court previously authorized the personal representative to
40 administer the estate without court supervision under IC 29-1-7.5, the
41 court may exercise its discretion under IC 29-1-7.5-2.5(c) to increase,
42 decrease, or waive the bond that the nonresident personal
SB 18—LS 6017/DI 149 13
1 representative would otherwise be required to file under this
2 subsection.
3 (f) A nonresident individual who satisfies the conditions of
4 subsection (d) or (e) submits personally to the jurisdiction of the court
5 in any proceeding that relates to the estate of the decedent.
6 (g) A court may order that a convicted felon may serve as a
7 domiciliary personal representative upon consideration of the
8 following:
9 (1) The amount of time that has elapsed since the person was
10 convicted of a felony.
11 (2) The nature of the felony conviction.
12 (3) Whether the felony conviction is no longer a felony charge
13 under current law.
14 (4) Whether the felony conviction has been expunged.
15 (5) Whether the person's felony conviction was acknowledged
16 in the testator's will or in a consent signed by the distributees.
17 SECTION 11. IC 29-1-14-1 IS AMENDED TO READ AS
18 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Except as
19 provided in IC 29-1-7-7, all claims against a decedent's estate, other
20 than expenses of administration and claims of the United States, the
21 state, or a subdivision of the state, whether due or to become due,
22 absolute or contingent, liquidated or unliquidated, founded on contract
23 or otherwise, shall be forever barred against the estate, the personal
24 representative, the heirs, devisees, and legatees of the decedent, unless
25 filed with the court in which such estate is being administered within:
26 (1) three (3) months after the date of the first published notice to
27 creditors; or
28 (2) three (3) months after the court has revoked probate of a will,
29 in accordance with IC 29-1-7-21, if the claimant was named as a
30 beneficiary in that revoked will;
31 whichever is later.
32 (b) No claim shall be allowed which was barred by any statute of
33 limitations at the time of decedent's death.
34 (c) No claim shall be barred by the statute of limitations which was
35 not barred at the time of the decedent's death, if the claim shall be filed
36 within:
37 (1) three (3) months after the date of the first published notice to
38 creditors; or
39 (2) three (3) months after the court has revoked probate of a will,
40 in accordance with IC 29-1-7-21, if the claimant was named as a
41 beneficiary in that revoked will;
42 whichever is later.
SB 18—LS 6017/DI 149 14
1 (d) All claims barrable under subsection (a) shall be barred if not
2 filed within nine (9) months after the death of the decedent.
3 (e) Nothing in this section shall affect or prevent any action or
4 proceeding to enforce any mortgage, pledge, or other lien upon
5 property of the estate.
6 (f) Nothing in this section shall affect or prevent the enforcement of
7 a claim for injury to person or damage to property arising out of
8 negligence against the estate of a deceased tort feasor within the period
9 of the statute of limitations provided for the tort action. A tort claim
10 against the estate of the tort feasor may be opened or reopened and suit
11 filed against the special representative of the estate within the period
12 of the statute of limitations of the tort. Any recovery against the tort
13 feasor's estate shall not affect any interest in the assets of the estate
14 unless the suit was filed within the time allowed for filing claims
15 against the estate. The rules of pleading and procedure in such cases
16 shall be the same as apply in ordinary civil actions.
17 (g) A claim by the unit against a decedent's estate is forever
18 barred unless:
19 (1) the unit files a claim in the court in which the estate is
20 being administered not later than the earlier of:
21 (A) two (2) months after the unit receives a notice of estate
22 administration under IC 29-1-7-7(d); or
23 (B) two (2) months after the unit receives a verified
24 statement under IC 29-1-8-4(b); or
25 (2) the unit:
26 (A) opens an estate for the decedent; and
27 (B) files a claim against the decedent in the estate;
28 not later than two (2) months after the unit receives an
29 affidavit under IC 29-1-8-1(d).
30 SECTION 12. IC 29-1-17-11, AS AMENDED BY P.L.41-2012,
31 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
32 JULY 1, 2024]: Sec. 11. (a) When two (2) or more distributees are
33 entitled to distribution of an undivided interest in any real or personal
34 property of the estate, distribution shall be made of undivided interests
35 in the property unless the personal representative or one (1) or more of
36 the distributees petition the court for partition not later than the hearing
37 on the petition for final distribution. If a petition is filed, the court, after
38 notice is given to all interested persons as the court directs, shall
39 proceed in accordance with IC 32-17-4-2.5. With respect to personal
40 property, the person who files for partition shall conduct a title search
41 with the bureau of motor vehicles (if the personal property is titled) or
42 a search for liens under the Uniform Commercial Code (if the personal
SB 18—LS 6017/DI 149 15
1 property is not titled). The person shall file a copy of the results of the
2 search with the court.
3 (b) If:
4 (1) a distribution of particular assets of a decedent is to be made
5 to two (2) or more distributees that are entitled to receive
6 fractional shares in the assets; and
7 (2) the decedent's personal representative may, under an
8 agreement among the distributees, chooses to distribute the
9 particular assets without distributing to each distributee a pro rata
10 share of each asset; However, the personal representative shall:
11 (1) the personal representative shall distribute to each distributee a
12 pro rata share of the total fair market value of all the particular assets
13 as of the date of distribution. and
14 (2) divide the assets in a manner that results in a fair and
15 equitable division among the distributees of any capital gain or
16 loss on the assets.
17 (c) The personal representative is not required to divide and
18 distribute particular assets under subsection (b) based upon the
19 potential gain or loss that the distributee would realize if the
20 distributed assets were sold.
21 SECTION 13. IC 29-3-4-1.5, AS ADDED BY P.L.38-2023,
22 SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
23 JULY 1, 2024]: Sec. 1.5. (a) A person may file a verified petition for
24 the issuance of a confidential health disclosure order against a
25 respondent health care provider that:
26 (1) has existing health or medical records in the possession or
27 custody of the respondent health care provider that contain
28 medical evidence of capacity or incapacity about an alleged
29 incapacitated person; or
30 (2) may be able to create a report to summarize medical evidence
31 of capacity or incapacity about an alleged incapacitated person.
32 (b) A verified petition filed under this section must state the
33 following:
34 (1) The name, age, and residence address of the alleged
35 incapacitated person.
36 (2) The name and address of any legal counsel that represents the
37 alleged incapacitated person, which is known or reasonably
38 available to the petitioner.
39 (3) The name and last known address of each person described in
40 IC 29-3-6-1(a)(4)(A) through IC 29-3-6-1(a)(4)(D).
41 (4) Facts sufficient to establish that the following conditions are
42 met:
SB 18—LS 6017/DI 149 16
1 (A) Any person alleges that the alleged incapacitated person
2 requires the appointment of a guardian or limited guardian
3 under this article.
4 (B) The alleged incapacitated person does not possess medical
5 evidence of capacity or incapacity sufficient to establish or
6 rebut evidence that may be presented in a hearing for the
7 appointment of a guardian under IC 29-3-5-1.
8 (C) The alleged incapacitated person cannot provide or has
9 refused to provide written authorization under 45 CFR
10 164.508 for disclosure of medical evidence of capacity or
11 incapacity about the alleged incapacitated person.
12 (D) No other person is able and willing to provide a written
13 authorization under 45 CFR 164.502(g)(2) for the disclosure
14 of medical evidence of capacity or incapacity about the alleged
15 incapacitated person.
16 (E) The respondent health care provider possesses medical
17 evidence of capacity or incapacity about the alleged
18 incapacitated person and is not willing to disclose the medical
19 evidence of capacity or incapacity without a written
20 authorization under 45 CFR 164.508 or a court order under 45
21 CFR 164.512.
22 (5) The name and address of the respondent health care provider.
23 (6) A description of:
24 (A) the existing health or medical records or the type of
25 existing health or medical records in the possession or custody
26 of the respondent health care provider that contain medical
27 evidence of capacity or incapacity about the alleged
28 incapacitated person; or
29 (B) a narrative report sought from the respondent health care
30 provider that would identify medical evidence of capacity or
31 incapacity about the alleged incapacitated person.
32 A petition filed under this section is not a confidential case record.
33 However, any protected health information contained within the
34 petition must be excluded from the publicly filed document and must
35 be filed as a confidential document under Rule 5(B) of the Indiana
36 Rules on Access to Court Records.
37 (c) A verified petition under this section may be combined with any
38 other petition for relief filed under this article, including a petition to
39 establish a limited or full guardianship.
40 (d) If the court receives a verified petition that complies with the
41 requirements of subsection (b), the court shall issue an order to set a
42 hearing date. In the order setting the hearing date, the court shall do the
SB 18—LS 6017/DI 149 17
1 following:
2 (1) Appoint an attorney or guardian ad litem to represent the
3 alleged incapacitated person if the verified petition does not
4 identify an attorney under subsection (b)(2).
5 (2) State that any person with an objection to a confidential health
6 disclosure order being issued in response to a verified petition
7 filed under this section shall file a written objection not later than
8 ten (10) days prior to the hearing date set under subsection (e) or
9 shall appear in person at the hearing to testify to the objection.
10 (e) In its discretion, the court shall set the hearing required under
11 subsection (d) on a date that is as soon as practicable.
12 (f) Not later than three (3) business days after the court issues an
13 order under subsection (d), the petitioner shall serve a copy of the
14 verified petition and a copy of the order setting a hearing date, by first
15 class mail, upon the following:
16 (1) The respondent health care provider.
17 (2) The alleged incapacitated person or the person having
18 physical custody and care of the alleged incapacitated person.
19 (3) The alleged incapacitated person's attorney described in
20 subsection (b)(2) or the court appointed attorney or guardian ad
21 litem appointed under subsection (d)(1).
22 (4) Each individual identified in subsection (b)(3) of the verified
23 petition.
24 (5) Each respondent health care provider identified in subsection
25 (b)(5) of the verified petition.
26 (6) Any other person to whom the court directs that notice be
27 served.
28 Any person who is entitled to receive notice under this subsection may
29 waive the service of notice in writing.
30 (g) At the hearing, the petitioner has the burden of proving, by a
31 preponderance of the evidence, that the conditions alleged in
32 subsection (b)(4) are met. An individual entitled to receive notice
33 under subsection (f) may present evidence at the hearing.
34 (h) If the court finds that the petitioner has proven that the
35 conditions in subsection (b)(4) apply and it is in the best interest of the
36 alleged incapacitated person to issue a confidential health disclosure
37 order, it shall grant the verified petition and issue a confidential health
38 disclosure order that requires the respondent health care provider to:
39 (1) produce a copy of the alleged incapacitated person's medical
40 records that contain medical evidence concerning the capacity or
41 incapacity of the person; or
42 (2) prepare a written narrative report for the court with a
SB 18—LS 6017/DI 149 18
1 professional assessment of the capacity or incapacity of the
2 alleged incapacitated person to make personal, financial, and
3 health care decisions without substantial assistance and the
4 suitability of less restrictive alternatives to a guardianship.
5 (i) A confidential health disclosure order issued by a court under
6 this section is intended to comply with the standard in 45 CFR
7 164.512(e) for disclosure of protected health information in judicial
8 proceedings.
9 (j) The respondent health care provider shall comply with the
10 confidential health disclosure order and transmit the medical evidence
11 of capacity or incapacity of the person described in subsection (h) to
12 the court. Upon receipt of the respondent health care provider's
13 response, the court shall:
14 (1) serve a copy of the medical records or medical report
15 produced by the respondent health care provider to the alleged
16 incapacitated person and the alleged incapacitated person's
17 attorney or guardian ad litem, not more than five (5) days after
18 receipt of the records; and
19 (2) determine, in the court's discretion, whether it is in the best
20 interest of the alleged incapacitated person to disclose all or part
21 of the medical records or medical report produced by the
22 respondent health care provider to any other individual identified
23 in the verified petition under subsection (b)(3).
24 To make a determination under subdivision (2) concerning whether the
25 medical evidence of capacity or incapacity should be disclosed to any
26 other individual, the court shall consider all material facts and
27 circumstances stated in the filed pleadings and in any hearing record;
28 medical evidence that contains a specific diagnosis of functional
29 impairment of the alleged incapacitated person; and the likelihood that
30 a limited guardianship or full guardianship may be warranted for the
31 alleged incapacitated person in the current proceeding or a future
32 proceeding under this article.
33 (k) Unless otherwise ordered by the court, the petitioner shall bear
34 the costs and expenses incurred by the respondent health care provider
35 to comply with the confidential health disclosure order.
36 (l) The record of:
37 (1) any court hearing held under this section;
38 (2) all exhibits entered during a hearing;
39 (3) all records or reports produced by a respondent health care
40 provider in response to a confidential health disclosure order; and
41 (4) all written objections filed or entered as evidence in a
42 proceeding under this section;
SB 18—LS 6017/DI 149 19
1 must be filed as a nonpublic document under Rule 5 of the Indiana
2 Rules on Access to Court Records.
3 (m) Once any action filed under this article concerning the alleged
4 incapacitated person has been fully adjudicated, every individual who
5 received any records in the course of those proceedings shall destroy
6 all documents that contain medical evidence of capacity or incapacity
7 about the individual alleged to be incapacitated.
8 SECTION 14. IC 30-4-1.5-12, AS ADDED BY P.L.40-2018,
9 SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
10 JULY 1, 2024]: Sec. 12. Any interested person who petitions or
11 otherwise seeks to docket files a proceeding under this article
12 regarding an electronic trust instrument under IC 30-4-6 may file with
13 the clerk of the court a complete converted copy of the electronic trust
14 instrument with the clerk of the court under IC 30-4-6.
15 SECTION 15. IC 30-4-2-15 IS AMENDED TO READ AS
16 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 15. (a) This section
17 does not apply to a trust:
18 (1) that is irrevocable on the date of a divorce or an annulment; or
19 (2) created by:
20 (A) the settlor and the settlor's spouse or former spouse under
21 a written agreement with each other that requires the creation
22 of the trust; or
23 (B) a court order.
24 (b) If, after creating a revocable trust, the settlor is divorced or the
25 marriage of the settlor to the settlor's spouse is annulled, the settlor's
26 former spouse shall for the purposes of the trust be treated as if the
27 spouse had died before the settlor died. settlor's marriage is dissolved
28 or annulled, all provisions in the revocable trust in favor of the
29 settlor's former spouse are revoked as of the time of the dissolution
30 or annulment of the marriage. The trust provisions remain revoked
31 even if the settlor remarries the former spouse.
32 SECTION 16. IC 30-4-3-3, AS AMENDED BY P.L.137-2016,
33 SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
34 JULY 1, 2024]: Sec. 3. (a) Except as provided in the terms of the trust
35 and subject to subsection (c), a trustee has the power to perform
36 without court authorization, except as provided in sections 4(b) and
37 5(a) of this chapter, every act necessary or appropriate for the purposes
38 of the trust including, by way of illustration and not of limitation, the
39 following powers:
40 (1) The power to:
41 (A) deal with the trust estate;
42 (B) buy, sell, or exchange and convey or transfer all property
SB 18—LS 6017/DI 149 20
1 (real, personal, or mixed) for cash or on credit and at public or
2 private sale with or without notice; and
3 (C) invest and reinvest the trust estate.
4 (2) The power to receive additions to the assets of the trust.
5 (3) The power to acquire an undivided interest in a trust asset in
6 which the trustee, in any trust capacity, holds an undivided
7 interest.
8 (4) The power to manage real property in every way, including:
9 (A) the adjusting of boundaries;
10 (B) erecting, altering, or demolishing buildings;
11 (C) dedicating of streets, alleys, or other public uses;
12 (D) subdividing;
13 (E) developing;
14 (F) obtaining vacation of plats;
15 (G) granting of easements and rights-of-way;
16 (H) partitioning;
17 (I) entering into party wall agreements; and
18 (J) obtaining title insurance for trust property.
19 (5) The power to:
20 (A) grant options concerning disposition of trust property,
21 including the sale of covered security options; and
22 (B) take options for acquisition of trust property, including the
23 purchase back of previously sold covered security options.
24 (6) The power to enter into a lease as lessor or lessee, with or
25 without option to renew.
26 (7) The power to enter into arrangements for exploration and
27 removal of minerals or other natural resources and enter into a
28 pooling or unitization agreement.
29 (8) The power to continue the operation or management of any
30 business or other enterprise placed in trust.
31 (9) The power to:
32 (A) borrow money, to be repaid from trust property or
33 otherwise; and
34 (B) encumber, mortgage, pledge, or grant a security interest in
35 trust property in connection with the exercise of any power.
36 (10) The power to:
37 (A) advance money for the benefit of the trust estate and for all
38 expenses or losses sustained in the administration of the trust;
39 and
40 (B) collect any money advanced, without interest or with
41 interest, at no more than the lowest rate prevailing when
42 advanced.
SB 18—LS 6017/DI 149 21
1 (11) The power to prosecute or defend actions, claims, or
2 proceedings for the protection of:
3 (A) trust property; and
4 (B) the trustee in the performance of the trustee's duties.
5 (12) The power to:
6 (A) pay or contest any claim;
7 (B) settle a claim by or against the trust by compromise or
8 arbitration; and
9 (C) abandon or release, totally or partially, any claim
10 belonging to the trust.
11 (13) The power to insure the:
12 (A) trust estate against damage or loss; and
13 (B) trustee against liability with respect to third persons.
14 (14) The power to pay taxes, assessments, and other expenses
15 incurred in the:
16 (A) acquisition, retention, and maintenance of the trust
17 property; and
18 (B) administration of the trust.
19 (15) The power to:
20 (A) vote securities, in person or by a general or special proxy;
21 (B) hold the securities in the name of a nominee if the trustee
22 is a corporate trustee; and
23 (C) effect or approve, and deposit securities in connection
24 with, any change in the form of the corporation, including:
25 (i) dissolution;
26 (ii) liquidation;
27 (iii) reorganization;
28 (iv) acquisition; and
29 (v) merger.
30 (16) The power to employ persons, including:
31 (A) attorneys;
32 (B) accountants;
33 (C) investment advisors; and
34 (D) agents;
35 to advise and assist the trustee in the performance of the trustee's
36 duties.
37 (17) The power to effect distribution of property in cash, in kind,
38 or partly in cash and partly in kind, in divided or undivided
39 interests.
40 (18) The power to execute and deliver all instruments necessary
41 or appropriate to accomplishing or facilitating the exercise of the
42 trustee's powers.
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1 (19) With respect to an interest in a proprietorship, partnership,
2 limited liability company, business trust, corporation, or another
3 form of business or enterprise, the power to:
4 (A) continue the business or enterprise; and
5 (B) take any action that may be taken by shareholders,
6 members, or property owners, including:
7 (i) merging;
8 (ii) dissolving; or
9 (iii) changing the form of business organization or
10 contributing additional capital.
11 (20) With respect to possible liability for violation of
12 environmental law, the power to:
13 (A) inspect or investigate property:
14 (i) the trustee holds or has been asked to hold; or
15 (ii) owned or operated by an organization in which the
16 trustee holds an interest or has been asked to hold an
17 interest;
18 to determine the application of environmental law with respect
19 to the property;
20 (B) take action to prevent, abate, or remedy an actual or
21 potential violation of an environmental law affecting property
22 held directly or indirectly by the trustee before or after the
23 assertion of a claim or the initiation of governmental
24 enforcement;
25 (C) decline to accept property into the trust or disclaim any
26 power with respect to property that is or may be burdened with
27 liability for violation of environmental law;
28 (D) compromise claims against the trust that may be asserted
29 for an alleged violation of environmental law; and
30 (E) pay the expense of any inspection, review, abatement, or
31 remedial action to comply with environmental law.
32 (21) The power to exercise elections with respect to federal, state,
33 and local taxes.
34 (22) The power to select a mode of payment under any employee
35 benefit plan or retirement plan, annuity, or life insurance payable
36 to the trustee and exercise rights under the plan, annuity, or
37 insurance, including the right to:
38 (A) indemnification:
39 (i) for expenses; and
40 (ii) against liabilities; and
41 (B) take appropriate action to collect the proceeds.
42 (23) The power to make loans out of trust property, including
SB 18—LS 6017/DI 149 23
1 loans to a beneficiary on terms and conditions the trustee
2 determines fair and reasonable under the circumstances. The
3 trustee has a lien on future distributions for repayment of the
4 loans.
5 (24) The power to pledge trust property to guarantee loans made
6 by others to the beneficiary on terms and conditions the trustee
7 considers to be fair and reasonable under the circumstances. The
8 trustee has a lien on future distributions for repayment of the
9 loans.
10 (25) The power to:
11 (A) appoint a trustee to act in another jurisdiction with respect
12 to trust property located in the other jurisdiction;
13 (B) confer on the appointed trustee all the appointing trustee's
14 powers and duties;
15 (C) require the appointed trustee to furnish security; and
16 (D) remove the appointed trustee.
17 (26) With regard to a beneficiary who is under a legal disability
18 or whom the trustee reasonably believes is incapacitated, the
19 power to pay an amount distributable to the beneficiary by:
20 (A) paying the amount directly to the beneficiary;
21 (B) applying the amount for the beneficiary's benefit;
22 (C) paying the amount to the beneficiary's guardian;
23 (D) paying the amount to the beneficiary's custodian under
24 IC 30-2-8.5 to create a custodianship or custodial trust;
25 (E) paying the amount to an adult relative or another person
26 having legal or physical care or custody of the beneficiary to
27 be expended on the beneficiary's behalf, if the trustee does not
28 know of a guardian, custodian, or custodial trustee; or
29 (F) managing the amount as a separate fund on the
30 beneficiary's behalf, subject to the beneficiary's continuing
31 right to withdraw the distribution.
32 (27) The power to:
33 (A) combine at least two (2) trusts into one (1) trust; or
34 (B) divide one (1) trust into at least two (2) trusts;
35 after notice to the qualified beneficiaries, if the result does not
36 impair the rights of any beneficiary or adversely affect
37 achievement of the purposes of the trust.
38 (b) Any act under subsection (a)(4), an option under subsection
39 (a)(5), a lease under subsection (a)(6), an arrangement under
40 subsection (a)(7), and an encumbrance, mortgage, pledge, or security
41 interest under subsection (a)(9) may be for a term either within or
42 extending beyond the term of the trust.
SB 18—LS 6017/DI 149 24
1 (c) In acquiring, investing, reinvesting, exchanging, retaining,
2 selling, and managing property for any trust, the trustee thereof shall
3 exercise the judgment and care required by IC 30-4-3.5. Within the
4 limitations of the foregoing standard, the trustee is authorized to
5 acquire and retain every kind of property, real, personal, or mixed, and
6 every kind of investment, including specifically, but without in any way
7 limiting the generality of the foregoing, bonds, debentures, and other
8 corporate obligations, stocks, preferred or common, and real estate
9 mortgages, which persons of prudence, discretion, and intelligence
10 acquire or retain for their own account, and within the limitations of the
11 foregoing standard, the trustee is authorized to retain property properly
12 acquired, without limitation as to time and without regard to its
13 suitability for original purchase. Within the limitations of the foregoing
14 standard, the trustee is authorized to sell covered security options and
15 to purchase back previously sold covered security options.
16 (d) If a distribution of particular trust assets is to be made to two (2)
17 or more beneficiaries entitled to receive fractional shares in those
18 assets, the trustee:
19 (1) may distribute the particular assets without distributing to
20 each beneficiary a pro rata share of each asset; However, the
21 trustee shall:
22 (1) (2) shall distribute to each beneficiary a pro rata share of the
23 total fair market value of all of the particular assets as of the date
24 of distribution; and
25 (2) cause the distribution to result in a fair and equitable division
26 among the beneficiaries of capital gain or loss on the assets.
27 (3) is not required to allocate and distribute particular assets
28 based upon the potential gain or loss that the beneficiaries
29 would realize if the particular assets were sold.
30 (e) If the trust is terminated or partially terminated, the trustee may
31 send to the beneficiaries a proposal for distribution. If the proposal for
32 distribution informs the beneficiary that the beneficiary:
33 (1) has a right to object to the proposed distribution; and
34 (2) must object not later than thirty (30) days after the proposal
35 for distribution was sent;
36 the right of the beneficiary to object to the proposed distribution
37 terminates if the beneficiary fails to notify the trustee of an objection
38 within the time limit set forth in subdivision (2).
39 (f) When any real or personal property subject to a lien (as defined
40 by IC 29-1-17-9(a)) is specifically distributable, the distributee shall
41 take the property subject to the lien unless the terms of the trust provide
42 expressly or by necessary implication that the lien be otherwise paid.
SB 18—LS 6017/DI 149 25
1 If:
2 (1) an event occurs that makes the property distributable; and
3 (2) the holder of a lien on the property receives payment on a
4 claim based upon the obligation secured by the lien;
5 the property subject to the lien shall be charged with the reimbursement
6 to the trust of the amount of the payment for the benefit of the
7 beneficiaries entitled to the distribution, unless the terms of the trust
8 provide expressly or by necessary implication that the payment be
9 charged against the residue of the trust estate.
10 (g) For purposes of subsection (f), a general directive or authority
11 in the trust for payment of debts does not imply an intent that the
12 distribution of property subject to a lien be made free from the lien.
13 (h) IC 32-39-2-8, IC 32-39-2-9, and IC 32-39-2-10 apply to the right
14 of a trustee acting under a trust to access:
15 (1) the content of an electronic communication (as defined in
16 IC 32-39-1-6);
17 (2) a catalogue of electronic communications (as defined in
18 IC 32-39-1-5); or
19 (3) any other digital asset (as defined in IC 32-39-1-10).
20 SECTION 17. IC 30-4-3-6, AS AMENDED BY P.L.56-2020,
21 SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
22 JULY 1, 2024]: Sec. 6. (a) The trustee has a duty to administer a trust
23 according to the terms of the trust.
24 (b) Unless the terms of the trust or the provisions of section 1.3 of
25 this chapter provide otherwise, the trustee also has a duty to do the
26 following:
27 (1) Administer the trust in a manner consistent with IC 30-4-3.5.
28 (2) Take possession of and maintain control over the trust
29 property.
30 (3) Preserve the trust property.
31 (4) Make the trust property productive for both the income and
32 remainder beneficiary. As used in this subdivision, "productive"
33 includes the production of income or investment for potential
34 appreciation.
35 (5) Keep the trust property separate from the trustee's individual
36 property and separate from or clearly identifiable from property
37 subject to another trust.
38 (6) Maintain clear and accurate accounts with respect to the trust
39 estate.
40 (7) Except as provided in subsection (c), keep the following
41 beneficiaries reasonably informed about the administration of the
42 trust and of the material facts necessary for the beneficiaries to
SB 18—LS 6017/DI 149 26
1 protect their interests:
2 (A) A current income beneficiary.
3 (B) A beneficiary who will become an income beneficiary
4 upon the expiration of the term of the current income
5 beneficiary, if the trust has become irrevocable by:
6 (i) the terms of the trust instrument; or
7 (ii) the death of the settlor.
8 A trustee satisfies the requirements of this subdivision by
9 providing a beneficiary described in clause (A) or (B), upon the
10 beneficiary's written request, access to the trust's accounting and
11 financial records concerning the administration of trust property
12 and the administration of the trust.
13 (8) Upon:
14 (A) the trust becoming irrevocable:
15 (i) by the terms of the trust instrument; or
16 (ii) by the death of the settlor; and
17 (B) the written request of an income beneficiary or
18 remainderman;
19 promptly provide a copy of the complete trust instrument to the
20 income beneficiary or remainderman. This subdivision does not
21 prohibit the terms of the trust from requiring the trustee to
22 separately provide each beneficiary only the portions of the trust
23 instrument that describe or pertain to that beneficiary's interest in
24 the trust and the administrative provisions of the trust instrument
25 that pertain to all beneficiaries of the trust.
26 (9) Take whatever action is reasonable to realize on claims
27 constituting part of the trust property.
28 (10) Defend actions involving the trust estate.
29 (11) Supervise any person to whom authority has been delegated.
30 (12) Determine the trust beneficiaries by acting on information:
31 (A) the trustee, by reasonable inquiry, considers reliable; and
32 (B) with respect to heirship, relationship, survivorship, or any
33 other issue relative to determining a trust beneficiary.
34 (c) The terms of a trust may expand, restrict, eliminate, or otherwise
35 vary the right of a beneficiary to be informed of the beneficiary's
36 interest in a trust for a period of time, including a period of time related
37 to:
38 (1) the age of the beneficiary;
39 (2) the lifetime of a settlor or the spouse of a settlor;
40 (3) a term of years or a period of time ending on a specific date;
41 or
42 (4) a specific event that is certain to occur.
SB 18—LS 6017/DI 149 27
1 (d) During any period of time that the trust instrument restricts or
2 eliminates the right of a beneficiary to be informed of the beneficiary's
3 interest in a trust, a designated representative for the beneficiary:
4 (1) shall represent that beneficiary and bind that beneficiary's
5 interests for purposes of any judiciary judicial proceeding or
6 nonjudicial matter involving the trust unless the court finds, after
7 a hearing upon notice, that a conflict of interest exists between the
8 beneficiary and the designated representative;
9 (2) has the authority to initiate or defend and participate in any
10 proceeding relating to the trust under this article or under IC 30-2
11 on behalf of the beneficiary; and
12 (3) shall not disclose to the beneficiary the information provided
13 by the trustee unless the court orders disclosure or the trustee
14 agrees to the disclosure.
15 An alleged conflict of interest between a beneficiary and the
16 beneficiary's designated representative may be asserted to the court by
17 the beneficiary whose right to be informed of the beneficiary's interest
18 in a trust is restricted or eliminated in the trust instrument or by any
19 other person authorized to represent and bind that beneficiary's interest
20 under IC 30-4-6-10.5.
21 (e) If:
22 (1) a beneficiary is an adult and has not been adjudicated to be an
23 incapacitated person;
24 (2) the trust instrument restricts or eliminates the right of the
25 beneficiary to be informed of the beneficiary's interest in a trust;
26 and
27 (3) the beneficiary discovers material information about the
28 beneficiary's interest in the trust from sources other than the
29 trustee;
30 subsections (c) and (d) do not prohibit the beneficiary from demanding
31 or petitioning for an accounting or statement regarding the trust under
32 IC 30-4-5-12(c), from receiving a copy of all relevant portions of the
33 trust instrument, or from demanding and receiving, under subsection
34 (b)(7), other information about the trust and its administration that is
35 consistent with the content and scope of the information that the
36 beneficiary received from sources other than the trustee. The
37 beneficiary may also initiate and participate in any proceeding against
38 or with the trustee under this chapter.
39 SECTION 18. IC 30-4-7-7 IS AMENDED TO READ AS
40 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. After a compromise
41 is executed, an interested person may docket the trust and submit the
42 following documents to the court for the court's approval:
SB 18—LS 6017/DI 149 28
1 (1) The agreement executed under section 6 of this chapter.
2 (2) A copy of the trust instrument filed under IC 30-4-6.
3 (3) Any other relevant documents.
4 SECTION 19. IC 30-5-3-3 IS AMENDED TO READ AS
5 FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Except as
6 provided in subsection (b), an attorney in fact may act under a power
7 of attorney, including executing an instrument on the principal's
8 behalf under IC 30-5-8-8, without recording the power of attorney
9 with the county recorder.
10 (b) An attorney in fact shall record the power of attorney authorizing
11 the execution of a document that must be recorded before presenting
12 the document for recording.
13 (c) A county recorder may not accept a document for recording if
14 the document:
15 (1) was executed; and
16 (2) is presented;
17 by an attorney in fact whose power of attorney is unrecorded.
18 (d) Except as provided in subsection (e), a document creating a
19 power of attorney must comply with recording requirements, including
20 notary and preparation statements, to be recorded under this section.
21 (e) An original document that created a power of attorney or a
22 copy of the document that created the power of attorney may be
23 recorded under this section if:
24 (1) the original document was executed by the principal in
25 accordance with IC 30-5-4-1(a)(4)(B) or IC 30-5-11-4(a)(2);
26 and
27 (2) a proof (as defined in IC 32-21-2-1.7) that:
28 (A) is signed by at least one (1) of the attesting witnesses;
29 and
30 (B) complies with IC 33-42;
31 is attached to the original document or the copy.
32 (e) (f) A document that is presented by an attorney in fact for
33 recording must reference the book and page or instrument number
34 where the instrument creating the power of attorney is recorded before
35 the document may be presented by the attorney in fact.
36 SECTION 20. IC 30-5-8-8 IS ADDED TO THE INDIANA CODE
37 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
38 1, 2024]: Sec. 8. (a) This section applies to an instrument executed
39 under this article by an attorney in fact on a principal's behalf.
40 (b) As used in this section, "agent" has the same meaning as
41 "attorney in fact" as defined in IC 30-5-2-2.
42 (c) A principal's power of attorney may authorize an attorney
SB 18—LS 6017/DI 149 29
1 in fact to execute an instrument on the principal's behalf if a
2 statement appears:
3 (1) above;
4 (2) beside; or
5 (3) below;
6 the attorney in fact's signature.
7 (d) A statement under subsection (c) must:
8 (1) identify the principal; and
9 (2) indicate that the attorney in fact is acting as the principal's
10 agent under the power of attorney.
11 (e) Any of the following example signature formats comply with
12 this section and indicate that the attorney in fact is acting as the
13 principal's agent under the power of attorney:
14 (1) Attorney in fact's signature
15 (Principal's name) by (attorney in fact's name), agent
16 (2) Principal's signature signed by the attorney in fact
17 (Principal's name) by (attorney in fact's name), POA
18 (3) Attorney in fact's signature
19 (Principal's name) by (attorney in fact's name), AIF
20 (4) Principal's printed name
21 Attorney in fact's signature
22 By: (Attorney in fact's name), as attorney in fact
23 (5) Principal's printed name
24 Attorney in fact's signature
25 By: (Attorney in fact's name), agent
26 (6) Principal's printed name
27 Attorney in fact's signature
28 By: (Attorney in fact's name), POA
29 (7) Principal's printed name
30 Attorney in fact's signature
31 By: (Attorney in fact's name), AIF
32 The examples listed in this subsection are not an exhaustive list.
33 (f) If an attorney in fact executes a deed or other instrument
34 that must be recorded in the office of a county recorder, the
35 instrument may incorporate by reference part or all of the
36 principal's power of attorney that was previously recorded under
37 IC 30-5-3-3.
38 SECTION 21. IC 31-9-2-100.7 IS ADDED TO THE INDIANA
39 CODE AS A NEW SECTION TO READ AS FOLLOWS
40 [EFFECTIVE JULY 1, 2024]: Sec. 100.7. "Qualified real property
41 order", for purposes of IC 31-15-7, means an order that includes
42 the following:
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1 (1) The caption and cause number of the dissolution
2 proceeding.
3 (2) The name and mailing address of the petitioning party.
4 (3) The street address of the Indiana real property.
5 (4) The names of all parties who had a prior interest in the
6 Indiana real property.
7 (5) The legal description of the Indiana real property.
8 (6) A tax parcel identification number for the Indiana real
9 property.
10 (7) The instrument number of the recorded document that
11 gives the parties title to the Indiana real property.
12 (8) A copy of the order or decree that approved or ordered
13 the division, transfer, or sale of the Indiana real property.
14 SECTION 22. IC 31-15-7-4.5 IS ADDED TO THE INDIANA
15 CODE AS A NEW SECTION TO READ AS FOLLOWS
16 [EFFECTIVE JULY 1, 2024]: Sec. 4.5. (a) If a court order or decree
17 entered under this chapter:
18 (1) approves or orders:
19 (A) the division or transfer of Indiana real property
20 between spouses; or
21 (B) the sale of Indiana real property by either or both
22 spouses;
23 (2) refers to the Indiana real property described in
24 subdivision (1) by specifying the physical address or location;
25 and
26 (3) does not contain:
27 (A) the legal description of the Indiana real property; and
28 (B) the tax parcel identification number of the Indiana real
29 property;
30 both spouses may sign and record an affidavit under subsection (b)
31 or either spouse may petition the court to request a qualified real
32 property order under subsection (d) to more specifically identify
33 the real property described in this subsection.
34 (b) If the material facts regarding the Indiana real property are
35 agreed upon by the parties to the proceeding in subsection (a) or by
36 the personal representative or successor in interest to the parties
37 to the proceeding in subsection (a), all parties may sign and record
38 an affidavit under IC 36-2-11-19 that includes the following
39 information:
40 (1) A copy of the order or decree that approved or ordered
41 the division, transfer, or sale of the Indiana real property.
42 (2) The legal description of the Indiana real property.
SB 18—LS 6017/DI 149 31
1 (3) The tax parcel identification number of the Indiana real
2 property.
3 (c) If a party to the proceeding in subsection (a) is deceased, the
4 personal representative of the deceased party's estate or, if there
5 is no personal representative appointed, any successor in interest
6 may sign the affidavit under subsection (b).
7 (d) If the parties cannot agree upon the material facts regarding
8 the Indiana real property, either party may file a verified petition
9 and a qualified real property order.
10 (e) A party who files a verified petition and a qualified real
11 property order under subsection (d) must provide service as
12 required by the Indiana Rules of Trial Procedure.
13 (f) Objections to the proposed qualified real property order may
14 be filed not later than twenty (20) days after the date of service.
15 (g) If a party:
16 (1) does not file objections during the period described in
17 subsection (f), the court shall enter the qualified real property
18 order without further proceedings; or
19 (2) does file timely objections, the court shall hold a hearing.
20 (h) Following a hearing held under subsection (g):
21 (1) the parties may sign an agreed entry;
22 (2) the court may enter the qualified real property order with
23 or without modifications; or
24 (3) the court may dismiss the petition.
25 (i) A qualified real property order entered under this section is
26 not an unlawful modification of the court's previous decree, order,
27 or judgment for purposes of section 9.1 of this chapter.
28 (j) An affidavit signed and recorded under subsection (b) or a
29 qualified real property order issued under subsection (h) is
30 effective as of the date of the court's order or decree under
31 subsection (a).
32 (k) The remedies and procedures under this section are in
33 addition to the remedies provided under Rule 70(A) of the Indiana
34 Rules of Trial Procedure.
35 SECTION 23. IC 32-17-14-11, AS AMENDED BY P.L.36-2011,
36 SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
37 JULY 1, 2024]: Sec. 11. (a) A transfer on death deed transfers the
38 interest provided to the beneficiary if the transfer on death deed is:
39 (1) executed by the owner or owner's legal representative; and
40 (2) recorded with the recorder of deeds in the county in which the
41 real property is situated before the death of the owner.
42 (b) A transfer on death deed is void if it is not recorded with the
SB 18—LS 6017/DI 149 32
1 recorder of deeds in the county in which the real property is situated
2 before the death of the owner.
3 (c) A transfer on death deed is not required to be supported by
4 consideration or delivered to the grantee beneficiary.
5 (d) A transfer on death deed may be used to transfer an interest in
6 real property to either a revocable or an irrevocable trust.
7 (e) If the owner records a transfer on death deed, the effect of the
8 recording the transfer on death deed is determined as follows:
9 (1) If the owner's interest in the real property is as a tenant by the
10 entirety, the conveyance is inoperable and void unless the other
11 spouse joins in the conveyance.
12 (2) If the owner's interest in the real property is as a joint tenant
13 with rights of survivorship, the conveyance severs the joint
14 tenancy and the cotenancy becomes a tenancy in common.
15 (3) If the owner's interest in the real property is as a joint tenant
16 with rights of survivorship and the property is subject to a
17 beneficiary designation, a conveyance of any joint owner's interest
18 has no effect on the original beneficiary designation for the
19 nonsevering joint tenant.
20 (4) If the owner's interest is as a tenant in common, the owner's
21 interest passes to the beneficiary as a transfer on death transfer.
22 (5) If the owner's interest is a life estate determined by the owner's
23 life, the conveyance is inoperable and void.
24 (6) If the owner's interest is any other interest, the interest passes
25 in accordance with this chapter and the terms and conditions of
26 the conveyance establishing the interest. If a conflict exists
27 between the conveyance establishing the interest and this chapter,
28 the terms and conditions of the conveyance establishing the
29 interest prevail.
30 (f) A beneficiary designation in a transfer on death deed may be
31 worded in substance as "(insert owner's name) conveys and warrants
32 (or quitclaims) to (insert owner's name), TOD to (insert beneficiary's
33 name)". This example is not intended to be exhaustive.
34 (g) A transfer on death deed using the phrase "pay on death to" or
35 the abbreviation "POD" may not be construed to require the liquidation
36 of the real property being transferred.
37 (h) This section does not preclude other methods of conveying real
38 property that are permitted by law and have the effect of postponing
39 enjoyment of an interest in real property until after the death of the
40 owner. This section applies only to transfer on death deeds and does
41 not invalidate any deed that is otherwise effective by law to convey title
42 to the interest and estates provided in the deed.
SB 18—LS 6017/DI 149 33
1 (i) The endorsement of the county auditor under IC 36-2-11-14 and
2 IC 36-2-9-18 is not necessary to record a transfer on death deed under
3 this section.
4 SECTION 24. IC 32-17-14-13, AS ADDED BY P.L.143-2009,
5 SECTION 41, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
6 JULY 1, 2024]: Sec. 13. (a) A transferor An owner of property, with
7 or without consideration, may execute a written instrument directly
8 transferring the property to one (1) or more individuals as a transferee
9 grantee to hold as owner in beneficiary form. Any grantee may be an
10 individual different from or in addition to the owner who executes
11 the instrument.
12 (b) A transferee grantee under an instrument described in
13 subsection (a) is considered the owner of the property for all purposes
14 and has all the rights to the property provided by law to the owner of
15 the property, including the right to revoke or change the beneficiary
16 designation.
17 (c) A direct transfer of property to a transferee grantee to hold as
18 owner in beneficiary form is effective when the written instrument
19 perfecting the transfer becomes effective to make the transferee
20 grantee the owner.
21 (d) A beneficiary designation in an instrument described in
22 subsection (a) may be worded in substance as "(insert owner's
23 name) conveys and warrants (or quitclaims) to (insert grantee's
24 name(s)), TOD to (insert beneficiary's name)". This example is not
25 intended to be exhaustive.
26 (e) A beneficiary designation in an instrument described in
27 subsection (a) is void if the instrument:
28 (1) conveys real property; and
29 (2) is not recorded with the recorder of deeds in the county in
30 which the real property is situated before the grantee's death.
31 (f) An instrument described in subsection (a) is effective to
32 convey title to the grantee regardless of whether a beneficiary
33 designation is void under subsection (e).
34 (g) If an instrument described in subsection (a) conveys real
35 property, the endorsement of the county auditor under
36 IC 36-2-11-14 and IC 36-2-9-18 is necessary to record the
37 instrument.
38 SECTION 25. IC 32-21-1-14, AS AMENDED BY P.L.185-2021,
39 SECTION 35, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
40 JULY 1, 2024]: Sec. 14. A conveyance of land by an attorney in fact
41 (as defined in IC 30-5-2-2) under IC 30-5-3-3 is not good effective
42 unless the attorney in fact is empowered by to make the conveyance
SB 18—LS 6017/DI 149 34
1 under a power of attorney (as defined in IC 30-5-2-7) that:
2 (1) is executed or signed by the principal (as defined in
3 IC 30-5-2-8); and
4 (2) has an acknowledgment (as defined in IC 33-42-0.5-2) or a
5 proof (as defined in and permitted under IC 32-21-2).
6 SECTION 26. IC 32-21-2-16 IS ADDED TO THE INDIANA
7 CODE AS A NEW SECTION TO READ AS FOLLOWS
8 [EFFECTIVE JULY 1, 2024]: Sec. 16. (a) A county recorder shall
9 include a cross-reference concerning a previously recorded
10 document if:
11 (1) the person presenting the document for recording has
12 made a request to the county recorder for a cross-reference
13 between the document being recorded and a previously
14 recorded document; and
15 (2) the front page of the document to be recorded contains a
16 cross-reference to a previously recorded document.
17 (b) The requirements of subsection (a) do not apply to the
18 following:
19 (1) A reference required in an affidavit under IC 29-1-7-23 to
20 a previously recorded deed or other instrument.
21 (2) A reference required in a document under IC 30-5-3-3 to
22 a previously recorded power of attorney.
23 (3) A reference required in an affidavit under IC 32-17-14-26
24 to a previously recorded transfer on death deed.
25 (4) A reference required in an easement under IC 32-23-2-5
26 to a recorded plat or a recorded deed of record.
27 (5) A reference required in an affidavit of service of notice
28 under IC 32-28-13-7 to a statement of intention to hold a
29 common law lien.
30 (6) A reference required in an affidavit of service of notice
31 under IC 32-28-14-9 to a homeowners association lien.
32 (7) A reference required in a document under a statute or
33 county ordinance to a previously recorded document.
34 SECTION 27. IC 36-2-9-18, AS AMENDED BY P.L.26-2022,
35 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
36 JULY 1, 2024]: Sec. 18. (a) Before the auditor makes the endorsement
37 required by IC 36-2-11-14, the auditor may require that a tax
38 identification number identifying the affected real property be placed
39 on an instrument that conveys, creates, encumbers, assigns, or
40 otherwise disposes of an interest in or a lien on real property. The tax
41 identification number may be established by the auditor with the
42 approval of the state board of accounts. If the tax identification number
SB 18—LS 6017/DI 149 35
1 is affixed to the instrument or if a tax identification number is not
2 required, the auditor shall make the proper endorsement on demand.
3 (b) On request, a county auditor shall provide assistance in
4 obtaining the proper tax identification number for instruments subject
5 to this section.
6 (c) The tax administration number established by this section is for
7 use in administering statutes concerning taxation of real property and
8 is not competent evidence of the location or size of the real property
9 affected by the instrument.
10 (d) After December 31, 2023, A county auditor may not refuse to
11 endorse a deed or instrument under this section as required by
12 IC 36-2-11-14 because the deed or instrument is:
13 (1) an electronic document; or
14 (2) made under IC 32-17-14.
15 (e) The legislative body of a county shall adopt an ordinance
16 requiring the auditor to collect a fee in the amount of ten dollars ($10)
17 for each:
18 (1) deed; or
19 (2) legal description of each parcel contained in the deed;
20 for which the auditor makes a real property endorsement. This fee is in
21 addition to any other fee provided by law. The auditor shall place the
22 revenue received under this subsection in a dedicated fund for use in
23 maintaining property tax records, in traditional or electronic format.
24 SECTION 28. IC 36-2-11-14, AS AMENDED BY P.L.106-2007,
25 SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
26 JULY 1, 2024]: Sec. 14. (a) The recorder may record:
27 (1) a deed of partition;
28 (2) a conveyance of land; or
29 (3) an affidavit of transfer to real estate; or
30 (4) a deed or instrument made under IC 32-17-14;
31 only if it has been endorsed by the auditor of the proper county as "duly
32 entered for taxation subject to final acceptance for transfer", "not
33 taxable", or "duly entered for taxation" as provided by IC 36-2-9-18.
34 (b) A county auditor may not refuse to endorse a deed or
35 instrument under IC 36-2-9-18 as required by this section because
36 the deed or instrument is made under IC 32-17-14.
37 (b) (c) A recorder who violates this section shall forfeit the sum of
38 five dollars ($5), to be recovered by an action in the name of the
39 county, for the benefit of the common school fund.
40 SECTION 29. IC 36-2-11-15, AS AMENDED BY P.L.160-2007,
41 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
42 JULY 1, 2024]: Sec. 15. (a) This section does not apply to:
SB 18—LS 6017/DI 149 36
1 (1) an instrument executed before July 1, 1959, or recorded before
2 July 26, 1967;
3 (2) a judgment, order, or writ of a court;
4 (3) a will or death certificate;
5 (4) an instrument executed or acknowledged outside Indiana; or
6 (5) a federal lien on real property or a federal tax lien on personal
7 property, as described in section 25 of this chapter;
8 (6) a judgment, an order, or an agreed entry dividing
9 ownership of Indiana real property, as described in
10 IC 31-15-7-4, that includes the legal description and tax parcel
11 identification number of the Indiana real property; or
12 (7) a qualified real property order, as described in
13 IC 31-15-7-4.5.
14 (b) The recorder may receive for record or filing an instrument that
15 conveys, creates, encumbers, assigns, or otherwise disposes of an
16 interest in or lien on property only if:
17 (1) the name of the person and governmental agency, if any, that
18 prepared the instrument is printed, typewritten, stamped, or
19 signed in a legible manner at the conclusion of the instrument;
20 and
21 (2) all Social Security numbers in the document are redacted,
22 unless required by law.
23 (c) An instrument complies with subsection (b)(1) if it contains a
24 statement in the following form:
25 "This instrument was prepared by (name).".
26 (d) An instrument complies with subsection (b)(2) if it contains a
27 statement in the following form at the conclusion of the instrument and
28 immediately preceding or following the statement required by
29 subsection (b)(1):
30 "I affirm, under the penalties for perjury, that I have taken
31 reasonable care to redact each Social Security number in this
32 document, unless required by law (name).".
33 SECTION 30. IC 36-2-11-16, AS AMENDED BY P.L.185-2021,
34 SECTION 65, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
35 JULY 1, 2024]: Sec. 16. (a) This section does not apply to:
36 (1) an instrument executed before November 4, 1943;
37 (2) a judgment, order, or writ of a court;
38 (3) a will or death certificate; or
39 (4) an instrument executed or acknowledged outside Indiana;
40 (5) a judgment, an order, or an agreed entry dividing
41 ownership of Indiana real property, as described in
42 IC 31-15-7-4, that includes the legal description and tax parcel
SB 18—LS 6017/DI 149 37
1 identification number of the Indiana real property; or
2 (6) a qualified real property order, as described in
3 IC 31-15-7-4.5.
4 (b) Whenever this section prescribes that the name of a person be
5 printed, typewritten, or stamped immediately beneath the person's
6 signature, the signature must be written on the instrument, directly
7 preceding the printed, typewritten, or stamped name, and may not be
8 superimposed on that name so as to render either illegible. However,
9 the instrument may be received for record if the name and signature
10 are, in the discretion of the county recorder, placed on the instrument
11 so as to render the connection between the two apparent.
12 (c) Except as provided in subsection (d), the recorder may receive
13 for record an instrument only if all of the following requirements are
14 met:
15 (1) The name of each person who executed the instrument is
16 legibly printed, typewritten, or stamped immediately beneath the
17 person's signature or the signature itself is printed, typewritten,
18 stamped, or logically associated with the instrument.
19 (2) The name of each witness to the instrument is legibly printed,
20 typewritten, or stamped immediately beneath the signature of the
21 witness or the signature itself is printed, typewritten, stamped, or
22 logically associated with the instrument.
23 (3) The name of each notarial officer whose signature appears on
24 the instrument is legibly printed, typewritten, or stamped
25 immediately beneath the signature of the notarial officer or the
26 signature itself is printed, typewritten, stamped, or logically
27 associated with the instrument.
28 (4) The name of each person who executed the instrument appears
29 identically in the body of the instrument, in the acknowledgment
30 or proof (as defined in and permitted under IC 32-21-2) in the
31 person's signature, and beneath the person's signature.
32 (5) The execution of the instrument and the acknowledgment or
33 proof (as defined in and permitted under IC 32-21-2), complies
34 with IC 33-42.
35 (6) If the instrument is a copy, the instrument is marked "Copy".
36 (d) The recorder may receive for record an instrument that does not
37 comply with subsection (c) if all of the following requirements are met:
38 (1) A printed or typewritten affidavit of a person with personal
39 knowledge of the facts is recorded with the instrument.
40 (2) The affidavit complies with this section.
41 (3) The affidavit states the correct name of a person, if any, whose
42 signature cannot be identified or whose name is not printed,
SB 18—LS 6017/DI 149 38
1 typewritten, or stamped on the instrument as prescribed by this
2 section.
3 (4) When the instrument does not comply with subsection (c)(4),
4 the affidavit states the correct name of the person and states that
5 each of the names used in the instrument refers to the person.
6 (5) If the instrument is a copy, the instrument is marked "Copy".
7 (e) The recorder shall record a document presented for recording or
8 a copy produced by a photographic process of the document presented
9 for recording if:
10 (1) the document complies with other statutory recording
11 requirements; and
12 (2) the document or copy will produce a clear and unobstructed
13 copy.
14 (f) An instrument, document, or copy received and recorded by a
15 county recorder is conclusively presumed to comply with this section.
16 A recorded copy shall have the same effect as if the original document
17 had been recorded.
18 SECTION 31. IC 36-2-11-16.5, AS AMENDED BY P.L.127-2017,
19 SECTION 80, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
20 JULY 1, 2024]: Sec. 16.5. (a) This section does not apply to the
21 following:
22 (1) A judgment, an order, or a writ of a court.
23 (2) A will or death certificate.
24 (3) A plat.
25 (4) A survey.
26 (5) A judgment, an order, or an agreed entry dividing
27 ownership of Indiana real property, as described in
28 IC 31-15-7-4, that includes the legal description and tax parcel
29 identification number of the Indiana real property.
30 (6) A qualified real property order, as described in
31 IC 31-15-7-4.5.
32 (b) The county recorder may receive for record an instrument or a
33 document if:
34 (1) the instrument or document consists of at least one (1)
35 individual page measuring not more than eight and one-half (8
36 1/2) inches by fourteen (14) inches that is not permanently bound
37 and is not a continuous form;
38 (2) the instrument or document is on white paper of at least
39 twenty (20) pound weight and has clean margins:
40 (A) on the first and last pages of at least two (2) inches on the
41 top and bottom and one-half (1/2) inch on each side; and
42 (B) on each additional page of at least one-half (1/2) inch on
SB 18—LS 6017/DI 149 39
1 the top, bottom, and each side; and
2 (3) the instrument or document is typewritten or computer
3 generated in black ink in at least 10 point type.
4 SECTION 32. IC 36-2-11-19, AS AMENDED BY P.L.57-2013,
5 SECTION 89, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
6 JULY 1, 2024]: Sec. 19. (a) An affidavit that:
7 (1) concerns the birth, marriage, death, name, residence, identity,
8 or relationship of any of the parties named in an instrument
9 affecting real property;
10 (2) is made by a professional surveyor registered under IC 25-21.5
11 and concerns the existence or location of a monument or physical
12 boundary;
13 (3) is made by a professional surveyor registered under IC 25-21.5
14 and reconciles ambiguous descriptions in conveyances with
15 descriptions in a regular chain of title;
16 (4) concerns facts incident to the adverse possession of real
17 property and the payment of taxes on that property; or
18 (5) states facts about the division or transfer of Indiana real
19 property, as described in IC 31-15-7-4, and includes:
20 (A) a copy of the order or decree that approved or ordered
21 the division, transfer, or sale of the Indiana real property;
22 and
23 (B) the legal description and tax parcel identification
24 number of the Indiana real property; or
25 (5) (6) is made by a purchaser of real property sold on foreclosure
26 or conveyed in lieu of foreclosure of:
27 (A) a deed of trust securing an issue of bonds or other
28 evidences of indebtedness;
29 (B) a mortgage;
30 (C) a contract for the sale of real property; or
31 (D) any other security instrument;
32 held by a fiduciary or other representative, and concerns the
33 authority of the purchaser to purchase the property and the terms
34 and conditions on which the property is to be held and disposed
35 of;
36 may be recorded in the office of the recorder of the county in which the
37 property is located. If an affidavit is presented to the recorder for record
38 under this section, the recorder shall record it in the miscellaneous
39 records in the recorder's office.
40 (b) An affidavit recorded under this section may be received in
41 evidence in any proceeding affecting the real property and constitutes
42 prima facie evidence of the facts and circumstances contained in the
SB 18—LS 6017/DI 149 40
1 affidavit.
SB 18—LS 6017/DI 149 41
COMMITTEE REPORT
Madam President: The Senate Committee on Judiciary, to which
was referred Senate Bill No. 18, 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 7, after line 42, begin a new paragraph and insert:
"SECTION 7. IC 29-1-5-8, AS AMENDED BY P.L.136-2018,
SECTION 214, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2024]: Sec. 8. If after making a will the testator
is divorced, testator's marriage is dissolved or annulled, all
provisions in the will in favor of the testator's former spouse are
revoked as of the time of the dissolution or annulment of the
marriage. The will provisions remain revoked even if the testator
remarries the former spouse. Annulment of the testator's marriage
shall have the same effect as a divorce. With this exception, no written
will, nor any part of the will, can be revoked by any change in the
circumstances or condition of the testator.".
Page 10, between lines 34 and 35, begin a new paragraph and insert:
"SECTION 10. IC 29-1-10-1, AS AMENDED BY P.L.38-2023,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 1. (a) Domiciliary letters testamentary or
domiciliary letters of general administration may be granted to one (1)
or more of the persons mentioned in this subsection, natural or
corporate, who are not disqualified, in the following order:
(1) To the executor or executors designated in a will that has been
admitted to probate.
(2) To a surviving spouse who is a devisee in a will that has been
admitted to probate.
(3) To a devisee in a will that has been admitted to probate.
(4) To the surviving spouse, or to the person or persons
nominated by the surviving spouse or to the surviving spouse and
the person or persons nominated by the surviving spouse.
(5) To:
(A) an heir;
(B) the person or persons nominated by an heir; or
(C) an heir and the person or persons nominated by an heir.
(6) If there is not a person listed in subdivisions (1) through (5),
then to any other qualified person.
(b) Except as provided in subsection (g), no person is qualified to
serve as a domiciliary personal representative who is:
(1) under eighteen (18) years of age;
SB 18—LS 6017/DI 149 42
(2) incapacitated unless the incapacity is caused only by:
(A) physical illness;
(B) physical impairment; or
(C) physical infirmity;
(3) a convicted felon, either under the laws of the United States or
of any state or territory of the United States;
(4) a resident corporation not authorized to act as a fiduciary in
this state; or
(5) a person whom the court finds unsuitable.
(c) A nonresident individual or corporate fiduciary may qualify and
serve as a joint personal representative with a resident personal
representative only by:
(1) filing with the court that has jurisdiction of the administration
of the decedent's estate a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property; plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate; and
(2) otherwise meeting the qualifications of subsection (b).
If the court authorizes the joint personal representative to administer
the estate without court supervision under IC 29-1-7.5, the court may
exercise its discretion under IC 29-1-7.5-2.5(c) to increase, decrease,
or waive the bond that the nonresident joint personal representative
would otherwise be required to file under this subsection.
(d) A nonresident individual who otherwise qualifies under
subsection (b) may qualify to serve as a personal representative in
Indiana only by filing with the court that has jurisdiction of the
administration of the decedent's estate:
(1) notice in writing of the individual's acceptance of the
appointment as personal representative;
(2) notice of the appointment of a resident agent to accept service
of process, notices, and other documents; and
(3) a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property; plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate.
If the court authorizes the nonresident personal representative to
administer the estate without court supervision under IC 29-1-7.5, the
court may exercise its discretion under IC 29-1-7.5-2.5(c) to increase,
SB 18—LS 6017/DI 149 43
decrease, or waive the bond that the nonresident personal
representative would otherwise be required to file under subdivision
(3).
(e) If a personal representative becomes a nonresident of this state,
the representative remains qualified to serve only if the representative
files with the court that has jurisdiction of the administration of the
estate a bond in an amount:
(1) not less than:
(A) the probable value of the estate's personal property; plus
(B) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(2) not greater than the probable gross value of the estate.
If the court previously authorized the personal representative to
administer the estate without court supervision under IC 29-1-7.5, the
court may exercise its discretion under IC 29-1-7.5-2.5(c) to increase,
decrease, or waive the bond that the nonresident personal
representative would otherwise be required to file under this
subsection.
(f) A nonresident individual who satisfies the conditions of
subsection (d) or (e) submits personally to the jurisdiction of the court
in any proceeding that relates to the estate of the decedent.
(g) A court may order that a convicted felon may serve as a
domiciliary personal representative upon consideration of the
following:
(1) The amount of time that has elapsed since the person was
convicted of a felony.
(2) The nature of the felony conviction.
(3) Whether the felony conviction is no longer a felony charge
under current law.
(4) Whether the felony conviction has been expunged.
(5) Whether the person's felony conviction was acknowledged
in the testator's will or in a consent signed by the
distributees.".
Page 12, between lines 38 and 39, begin a new paragraph and insert:
"SECTION 11. IC 29-3-4-1.5, AS ADDED BY P.L.38-2023,
SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 1.5. (a) A person may file a verified petition for
the issuance of a confidential health disclosure order against a
respondent health care provider that:
(1) has existing health or medical records in the possession or
custody of the respondent health care provider that contain
medical evidence of capacity or incapacity about an alleged
SB 18—LS 6017/DI 149 44
incapacitated person; or
(2) may be able to create a report to summarize medical evidence
of capacity or incapacity about an alleged incapacitated person.
(b) A verified petition filed under this section must state the
following:
(1) The name, age, and residence address of the alleged
incapacitated person.
(2) The name and address of any legal counsel that represents the
alleged incapacitated person, which is known or reasonably
available to the petitioner.
(3) The name and last known address of each person described in
IC 29-3-6-1(a)(4)(A) through IC 29-3-6-1(a)(4)(D).
(4) Facts sufficient to establish that the following conditions are
met:
(A) Any person alleges that the alleged incapacitated person
requires the appointment of a guardian or limited guardian
under this article.
(B) The alleged incapacitated person does not possess medical
evidence of capacity or incapacity sufficient to establish or
rebut evidence that may be presented in a hearing for the
appointment of a guardian under IC 29-3-5-1.
(C) The alleged incapacitated person cannot provide or has
refused to provide written authorization under 45 CFR
164.508 for disclosure of medical evidence of capacity or
incapacity about the alleged incapacitated person.
(D) No other person is able and willing to provide a written
authorization under 45 CFR 164.502(g)(2) for the disclosure
of medical evidence of capacity or incapacity about the alleged
incapacitated person.
(E) The respondent health care provider possesses medical
evidence of capacity or incapacity about the alleged
incapacitated person and is not willing to disclose the medical
evidence of capacity or incapacity without a written
authorization under 45 CFR 164.508 or a court order under 45
CFR 164.512.
(5) The name and address of the respondent health care provider.
(6) A description of:
(A) the existing health or medical records or the type of
existing health or medical records in the possession or custody
of the respondent health care provider that contain medical
evidence of capacity or incapacity about the alleged
incapacitated person; or
SB 18—LS 6017/DI 149 45
(B) a narrative report sought from the respondent health care
provider that would identify medical evidence of capacity or
incapacity about the alleged incapacitated person.
A petition filed under this section is not a confidential case record.
However, any protected health information contained within the
petition must be excluded from the publicly filed document and must
be filed as a confidential document under Rule 5(B) of the Indiana
Rules on Access to Court Records.
(c) A verified petition under this section may be combined with any
other petition for relief filed under this article, including a petition to
establish a limited or full guardianship.
(d) If the court receives a verified petition that complies with the
requirements of subsection (b), the court shall issue an order to set a
hearing date. In the order setting the hearing date, the court shall do the
following:
(1) Appoint an attorney or guardian ad litem to represent the
alleged incapacitated person if the verified petition does not
identify an attorney under subsection (b)(2).
(2) State that any person with an objection to a confidential health
disclosure order being issued in response to a verified petition
filed under this section shall file a written objection not later than
ten (10) days prior to the hearing date set under subsection (e) or
shall appear in person at the hearing to testify to the objection.
(e) In its discretion, the court shall set the hearing required under
subsection (d) on a date that is as soon as practicable.
(f) Not later than three (3) business days after the court issues an
order under subsection (d), the petitioner shall serve a copy of the
verified petition and a copy of the order setting a hearing date, by first
class mail, upon the following:
(1) The respondent health care provider.
(2) The alleged incapacitated person or the person having
physical custody and care of the alleged incapacitated person.
(3) The alleged incapacitated person's attorney described in
subsection (b)(2) or the court appointed attorney or guardian ad
litem appointed under subsection (d)(1).
(4) Each individual identified in subsection (b)(3) of the verified
petition.
(5) Each respondent health care provider identified in subsection
(b)(5) of the verified petition.
(6) Any other person to whom the court directs that notice be
served.
Any person who is entitled to receive notice under this subsection may
SB 18—LS 6017/DI 149 46
waive the service of notice in writing.
(g) At the hearing, the petitioner has the burden of proving, by a
preponderance of the evidence, that the conditions alleged in
subsection (b)(4) are met. An individual entitled to receive notice
under subsection (f) may present evidence at the hearing.
(h) If the court finds that the petitioner has proven that the
conditions in subsection (b)(4) apply and it is in the best interest of the
alleged incapacitated person to issue a confidential health disclosure
order, it shall grant the verified petition and issue a confidential health
disclosure order that requires the respondent health care provider to:
(1) produce a copy of the alleged incapacitated person's medical
records that contain medical evidence concerning the capacity or
incapacity of the person; or
(2) prepare a written narrative report for the court with a
professional assessment of the capacity or incapacity of the
alleged incapacitated person to make personal, financial, and
health care decisions without substantial assistance and the
suitability of less restrictive alternatives to a guardianship.
(i) A confidential health disclosure order issued by a court under
this section is intended to comply with the standard in 45 CFR
164.512(e) for disclosure of protected health information in judicial
proceedings.
(j) The respondent health care provider shall comply with the
confidential health disclosure order and transmit the medical evidence
of capacity or incapacity of the person described in subsection (h) to
the court. Upon receipt of the respondent health care provider's
response, the court shall:
(1) serve a copy of the medical records or medical report
produced by the respondent health care provider to the alleged
incapacitated person and the alleged incapacitated person's
attorney or guardian ad litem, not more than five (5) days after
receipt of the records; and
(2) determine, in the court's discretion, whether it is in the best
interest of the alleged incapacitated person to disclose all or part
of the medical records or medical report produced by the
respondent health care provider to any other individual identified
in the verified petition under subsection (b)(3).
To make a determination under subdivision (2) concerning whether the
medical evidence of capacity or incapacity should be disclosed to any
other individual, the court shall consider all material facts and
circumstances stated in the filed pleadings and in any hearing record;
medical evidence that contains a specific diagnosis of functional
SB 18—LS 6017/DI 149 47
impairment of the alleged incapacitated person; and the likelihood that
a limited guardianship or full guardianship may be warranted for the
alleged incapacitated person in the current proceeding or a future
proceeding under this article.
(k) Unless otherwise ordered by the court, the petitioner shall bear
the costs and expenses incurred by the respondent health care provider
to comply with the confidential health disclosure order.
(l) The record of:
(1) any court hearing held under this section;
(2) all exhibits entered during a hearing;
(3) all records or reports produced by a respondent health care
provider in response to a confidential health disclosure order; and
(4) all written objections filed or entered as evidence in a
proceeding under this section;
must be filed as a nonpublic document under Rule 5 of the Indiana
Rules on Access to Court Records.
(m) Once any action filed under this article concerning the alleged
incapacitated person has been fully adjudicated, every individual who
received any records in the course of those proceedings shall destroy
all documents that contain medical evidence of capacity or incapacity
about the individual alleged to be incapacitated.".
Page 13, between lines 3 and 4, begin a new paragraph and insert:
"SECTION 13. IC 30-4-2-15 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 15. (a) This section
does not apply to a trust:
(1) that is irrevocable on the date of a divorce or an annulment; or
(2) created by:
(A) the settlor and the settlor's spouse or former spouse under
a written agreement with each other that requires the creation
of the trust; or
(B) a court order.
(b) If, after creating a revocable trust, the settlor is divorced or the
marriage of the settlor to the settlor's spouse is annulled, the settlor's
former spouse shall for the purposes of the trust be treated as if the
spouse had died before the settlor died. settlor's marriage is dissolved
or annulled, all provisions in the revocable trust in favor of the
settlor's former spouse are revoked as of the time of the dissolution
or annulment of the marriage. The trust provisions remain revoked
even if the settlor remarries the former spouse.".
Renumber all SECTIONS consecutively.
and when so amended that said bill do pass.
SB 18—LS 6017/DI 149 48
(Reference is to SB 18 as introduced.)
BROWN L, Chairperson
Committee Vote: Yeas 11, Nays 0.
SB 18—LS 6017/DI 149