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 ENROLLED ACT No. 18
AN ACT to amend the Indiana Code concerning probate.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 16-36-7-13, AS ADDED BY P.L.50-2021,
SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 13. As used in this chapter, "health care
representative" means a competent adult or other person designated
by a declarant in an advance directive to:
(1) make health care decisions; and
(2) receive health information;
regarding the declarant. The term includes a person who receives and
holds validly delegated authority from a designated health care
representative.
SECTION 2. IC 23-18-6-4, AS AMENDED BY P.L.156-2023,
SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 4. (a) Unless otherwise provided in a written
operating agreement, a limited liability company existing under this
article on or before June 30, 1999, is governed by this section.
(b) Except as otherwise provided in a written operating agreement,
if a limited liability company has at least two (2) members, an assignee
of an interest may become a member only if the other members
unanimously consent. If a limited liability company has only one (1)
member, an assignee of the entire interest may become a member:
(1) under the terms of an agreement between the assignor and the
assignee; or
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(2) except as otherwise provided in a written operating agreement
by a specific reference to this subsection or as otherwise provided
in an agreement between the assignor and the assignee,
automatically upon the voluntary assignment by the sole member
of all the member's interest to a single assignee that the member
consented to at the time of the assignment and that was not
affected by foreclosure or other similar legal process.
The consent of a member may be evidenced in any manner specified
in writing in an operating agreement, but in the absence of a
specification, consent must be evidenced by a written instrument, dated
and signed by the member.
(c) If:
(1) a limited liability company has one (1) member;
(2) the member of the limited liability company dies;
(3) the deceased member's interest in the limited liability
company is not registered in beneficiary form under
IC 32-17-14; and
(4) the limited liability company does not have a written
operating agreement that controls or specifies the transfer or
other disposition of the deceased member's interest;
the deceased member's interest passes as described in subsection
(d).
(d) This subsection applies to the transfer of a deceased
member's interest under the circumstances described in subsection
(c). Unless otherwise provided in a written operating agreement or
a valid disclaimer under IC 32-17.5, the deceased member's
interest in a limited liability company passes automatically upon
death to:
(1) a legatee identified in the deceased member's will admitted
to probate under IC 29-1-7; or
(2) the deceased member's heirs under IC 29-1-2-1 if the
deceased member died intestate.
A transfer of an interest under this subsection is subject to
IC 29-1-7-23 and does not affect the enforceability of a timely filed
claim by a creditor against the estate of the deceased member. A
legatee or an heir is automatically admitted as a member of the
limited liability company under this subsection.
(e) If a personal representative is appointed under IC 29-1-10
for the estate of a deceased member described in subsection (c), the
personal representative possesses and may exercise all rights and
powers of the deceased member's interest before the interest of the
deceased member is distributed to the deceased member's legatees
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or heirs under this section.
(c) (f) An assignee who becomes a member:
(1) has, to the extent assigned, the rights and powers and is
subject to the restrictions and liabilities of a member under the
articles of organization, any operating agreement, and this article;
and
(2) is liable for any obligations of the member's assignor for
unpaid contributions under IC 23-18-5-1 or for any wrongful
distributions under IC 23-18-5-7.
However, the assignee is not obligated for liabilities of which the
assignee had no knowledge at the time the assignee became a member
and that could not be ascertained from a written operating agreement.
(d) (g) Whether or not an assignee of an interest becomes a member,
the assignor is not released from the assignor's liability to the limited
liability company for unpaid contributions under IC 23-18-5-1 or for
any wrongful distributions under IC 23-18-5-7 that are solely a result
of the assignment.
(e) (h) Unless otherwise provided in a written operating agreement,
a member who assigns the member's entire interest in the limited
liability company ceases to be a member or to have the power to
exercise any rights of a member when an assignee of the member's
interest becomes a member with respect to the assigned interest.
SECTION 3. IC 23-18-6-4.1, AS AMENDED BY P.L.156-2023,
SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 4.1. (a) A limited liability company formed under
this article after June 30, 1999, is governed by this section.
(b) Except as otherwise provided in a written operating agreement,
if a limited liability company has at least two (2) members, an assignee
of an interest may become a member only if the other members
unanimously consent. If a limited liability company has only one (1)
member, an assignee of the entire interest may become a member:
(1) in accordance with the terms of an agreement between the
assignor and the assignee; or
(2) except as otherwise provided in a written operating agreement
by a specific reference to this subsection or as otherwise provided
in an agreement between the assignor and the assignee,
automatically upon the voluntary assignment by the sole member
of all of the member's interest to a single assignee that the
member consented to at the time of the assignment and that was
not affected by foreclosure or other similar legal process.
The consent of a member may be evidenced in any manner specified
in writing in an operating agreement, but in the absence of a
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specification, consent must be evidenced by a written instrument, dated
and signed by the member.
(c) If:
(1) a limited liability company has one (1) member;
(2) the member of the limited liability company dies;
(3) the deceased member's interest in the limited liability
company is not registered in beneficiary form under
IC 32-17-14; and
(4) the limited liability company does not have a written
operating agreement that controls or specifies the transfer or
other disposition of the deceased member's interest;
the deceased member's interest passes as described in subsection
(d).
(d) This subsection applies to the transfer of a deceased
member's interest under the circumstances described in subsection
(c). Unless otherwise provided in a written operating agreement or
a valid disclaimer under IC 32-17.5, the deceased member's
interest in a limited liability company passes automatically upon
death to:
(1) a legatee identified in the deceased member's will admitted
to probate under IC 29-1-7; or
(2) the deceased member's heirs under IC 29-1-2-1 if the
deceased member died intestate.
A transfer of an interest under this subsection is subject to
IC 29-1-7-23 and does not affect the enforceability of a timely filed
claim by a creditor against the estate of the deceased member. A
legatee or an heir is automatically admitted as a successor member
or a member of the limited liability company under this subsection.
(e) If a personal representative is appointed under IC 29-1-10
for the estate of a deceased member described in subsection (c), the
personal representative possesses and may exercise all rights and
powers of the deceased member's interest before the interest of the
deceased member is distributed to the deceased member's legatees
or heirs under this section.
(c) (f) An assignee who becomes a member:
(1) has, to the extent assigned, the rights and powers and is
subject to the restrictions and liabilities of a member under the
articles of organization, any operating agreement, and this article;
and
(2) is liable for any obligations of the member's assignor for
unpaid contributions under IC 23-18-5-1 or for any wrongful
distributions under IC 23-18-5-7.
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However, the assignee is not obligated for liabilities of which the
assignee had no knowledge at the time the assignee became a member
and that could not be ascertained from a written operating agreement.
(d) (g) Whether or not an assignee of an interest becomes a member,
the assignor is not released from the assignor's liability to the limited
liability company for unpaid contributions under IC 23-18-5-1 or for
any wrongful distributions under IC 23-18-5-7 that are solely a result
of the assignment.
(e) (h) Unless otherwise provided in a written operating agreement,
a member who assigns the member's entire interest in the limited
liability company ceases to be a member or to have the power to
exercise any rights of a member.
SECTION 4. IC 23-18-6-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 5. (a) A person ceases
to be a member of a limited liability company upon the occurrence of
any of the following events:
(1) The person withdraws from the limited liability company as
provided in section 6 of this chapter.
(2) The person ceases to be a member as provided in section 4(e)
or 4.1(e) 4(h) or 4.1(h) of this chapter.
(3) The person is removed as a member:
(A) in accordance with the operating agreement; or
(B) unless otherwise provided in a written operating
agreement, by the affirmative vote, approval, or consent of a
majority in interest of the members after the member has
assigned the member's entire interest in the limited liability
company.
(4) Unless otherwise provided in a written operating agreement or
with the written consent of all other members, in the case of a
member who is an individual, the individual's death.
(5) Unless otherwise provided in a written operating agreement or
with the written consent of all other members, in the case of a
member who is acting as a member by virtue of being a trustee of
a trust, the termination of the trust, but not merely the substitution
of a new trustee.
(6) Unless otherwise provided in a written operating agreement or
with the written consent of all other members, in the case of a
member that is a partnership, limited partnership, or another
limited liability company, the dissolution and commencement of
winding up of the partnership, limited partnership, or limited
liability company.
(7) Unless otherwise provided in a written operating agreement or
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with the written consent of all other members, in the case of a
member that is a corporation, the dissolution of the corporation.
(8) Unless otherwise provided in a written operating agreement or
with the written consent of all other members, in the case of a
member that is an estate, the distribution by the fiduciary of the
estate's entire interest in the limited liability company.
(b) A written operating agreement may provide for other events that
result in a person ceasing to be a member of the limited liability
company, including insolvency, bankruptcy, and adjudicated
incompetency.
SECTION 5. IC 23-18-9-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Unless otherwise
provided in a written operating agreement, a limited liability company
existing under this article on or before June 30, 1999, is governed by
this section.
(b) A limited liability company is dissolved and its affairs must be
wound up on the first of the following to occur:
(1) At the time or on the occurrence of events specified in writing
in the articles of organization or operating agreement.
(2) Written consent of all the members.
(3) Except as provided in IC 23-18-6-4(c), upon the death of
the member of a limited liability company that had one (1)
member, an event of dissociation occurs with respect to a
member, unless the business of the limited liability company is
continued by the consent of all the remaining members not more
than ninety (90) days after the occurrence of the event or as
otherwise provided in writing in the articles of organization or
operating agreement.
(4) Entry of a decree of judicial dissolution under section 2 of this
chapter.
SECTION 6. IC 23-18-9-1.1, AS AMENDED BY P.L.40-2013,
SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 1.1. (a) A limited liability company formed under
this article after June 30, 1999, is governed by this section.
(b) A limited liability company is dissolved and the limited liability
company's affairs must be wound up when the first of the following
occurs:
(1) At the time or on the occurrence of events specified in writing
in the articles of organization or operating agreement.
(2) Subject to IC 23-18-4-4(a)(4)(A), for a limited liability
company:
(A) formed under this article after June 30, 2013, the
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unanimous consent of the members, unless a written operating
agreement provides that dissolution may be authorized by the
vote of members holding fewer than all the interests in the
limited liability company or holding fewer than all interests in
one (1) or more classes of members; or
(B) formed under this article after June 30, 1999, and before
July 1, 2013, if there is:
(i) one (1) class or group of members, written consent of
two-thirds (2/3) in interest of the members; or
(ii) more than one (1) class or group of members, written
consent of two-thirds (2/3) in interest of each class or group
of members.
(3) Entry of a decree of judicial dissolution under section 2 of this
chapter.
(c) Except as provided in IC 23-18-6-4.1(c), upon the death of
the member of a limited liability company that had one (1)
member, a limited liability company is dissolved and the limited
liability company's affairs must be wound up if there are no members.
However, this subsection does not apply if, under a provision in the
operating agreement, not more than ninety (90) days after the
occurrence of the event that caused the last remaining member to cease
to be a member, either:
(1) the personal representative of the last remaining member
agrees in writing:
(A) to continue the business of the limited liability company;
and
(B) to the admission of the personal representative or the
personal representative's nominee or designee to the limited
liability company as a member; or
(2) a member is admitted to the limited liability company in the
manner provided for in the operating agreement specifically for
the admission of a member to the limited liability company after
the last remaining member ceases to be a member;
effective as of the time of the event that caused the last remaining
member to cease to be a member.
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 are reinstated if the testator
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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.
SECTION 8. 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;
(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:
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(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,
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,
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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.
SECTION 9. IC 29-1-14-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 1. (a) Except as
provided in IC 29-1-7-7, all claims against a decedent's estate, other
than expenses of administration and claims of the United States, the
state, or a subdivision of the state, whether due or to become due,
absolute or contingent, liquidated or unliquidated, founded on contract
or otherwise, shall be forever barred against the estate, the personal
representative, the heirs, devisees, and legatees of the decedent, unless
filed with the court in which such estate is being administered within:
(1) three (3) months after the date of the first published notice to
creditors; or
(2) three (3) months after the court has revoked probate of a will,
in accordance with IC 29-1-7-21, if the claimant was named as a
beneficiary in that revoked will;
whichever is later.
(b) No claim shall be allowed which was barred by any statute of
limitations at the time of decedent's death.
(c) No claim shall be barred by the statute of limitations which was
not barred at the time of the decedent's death, if the claim shall be filed
within:
(1) three (3) months after the date of the first published notice to
creditors; or
(2) three (3) months after the court has revoked probate of a will,
in accordance with IC 29-1-7-21, if the claimant was named as a
beneficiary in that revoked will;
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whichever is later.
(d) All claims barrable under subsection (a) shall be barred if not
filed within nine (9) months after the death of the decedent.
(e) Nothing in this section shall affect or prevent any action or
proceeding to enforce any mortgage, pledge, or other lien upon
property of the estate.
(f) Nothing in this section shall affect or prevent the enforcement of
a claim for injury to person or damage to property arising out of
negligence against the estate of a deceased tort feasor within the period
of the statute of limitations provided for the tort action. A tort claim
against the estate of the tort feasor may be opened or reopened and suit
filed against the special representative of the estate within the period
of the statute of limitations of the tort. Any recovery against the tort
feasor's estate shall not affect any interest in the assets of the estate
unless the suit was filed within the time allowed for filing claims
against the estate. The rules of pleading and procedure in such cases
shall be the same as apply in ordinary civil actions.
(g) A claim by the unit against a decedent's estate is forever
barred unless:
(1) the unit files a claim in the court in which the decedent's
estate is being administered; or
(2) the unit opens an estate for the decedent and files a claim
against the decedent in the estate;
not later than one hundred twenty (120) days after the date of
death of the decedent.
SECTION 10. IC 29-1-17-11, AS AMENDED BY P.L.41-2012,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 11. (a) When two (2) or more distributees are
entitled to distribution of an undivided interest in any real or personal
property of the estate, distribution shall be made of undivided interests
in the property unless the personal representative or one (1) or more of
the distributees petition the court for partition not later than the hearing
on the petition for final distribution. If a petition is filed, the court, after
notice is given to all interested persons as the court directs, shall
proceed in accordance with IC 32-17-4-2.5. With respect to personal
property, the person who files for partition shall conduct a title search
with the bureau of motor vehicles (if the personal property is titled) or
a search for liens under the Uniform Commercial Code (if the personal
property is not titled). The person shall file a copy of the results of the
search with the court.
(b) If:
(1) a distribution of particular assets of a decedent is to be made
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to two (2) or more distributees that are entitled to receive
fractional shares in the assets; and
(2) the decedent's personal representative may, under an
agreement among the distributees, chooses to distribute the
particular assets without distributing to each distributee a pro rata
share of each asset; However, the personal representative shall:
(1) the personal representative shall distribute to each distributee a
pro rata share of the total fair market value of all the particular assets
as of the date of distribution. and
(2) divide the assets in a manner that results in a fair and
equitable division among the distributees of any capital gain or
loss on the assets.
(c) The personal representative is not required to divide and
distribute particular assets under subsection (b) based upon the
potential gain or loss that the distributee would realize if the
distributed assets were sold.
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
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
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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
(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).
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(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
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.
SEA 18 — CC 1 15
(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
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
SEA 18 — CC 1 16
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.
SECTION 12. IC 30-4-1.5-12, AS ADDED BY P.L.40-2018,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 12. Any interested person who petitions or
otherwise seeks to docket files a proceeding under this article
regarding an electronic trust instrument under IC 30-4-6 may file with
the clerk of the court a complete converted copy of the electronic trust
instrument with the clerk of the court under IC 30-4-6.
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 are reinstated
if the settlor remarries the former spouse.
SECTION 14. IC 30-4-3-3, AS AMENDED BY P.L.137-2016,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 3. (a) Except as provided in the terms of the trust
and subject to subsection (c), a trustee has the power to perform
without court authorization, except as provided in sections 4(b) and
5(a) of this chapter, every act necessary or appropriate for the purposes
of the trust including, by way of illustration and not of limitation, the
following powers:
(1) The power to:
(A) deal with the trust estate;
(B) buy, sell, or exchange and convey or transfer all property
(real, personal, or mixed) for cash or on credit and at public or
private sale with or without notice; and
(C) invest and reinvest the trust estate.
(2) The power to receive additions to the assets of the trust.
SEA 18 — CC 1 17
(3) The power to acquire an undivided interest in a trust asset in
which the trustee, in any trust capacity, holds an undivided
interest.
(4) The power to manage real property in every way, including:
(A) the adjusting of boundaries;
(B) erecting, altering, or demolishing buildings;
(C) dedicating of streets, alleys, or other public uses;
(D) subdividing;
(E) developing;
(F) obtaining vacation of plats;
(G) granting of easements and rights-of-way;
(H) partitioning;
(I) entering into party wall agreements; and
(J) obtaining title insurance for trust property.
(5) The power to:
(A) grant options concerning disposition of trust property,
including the sale of covered security options; and
(B) take options for acquisition of trust property, including the
purchase back of previously sold covered security options.
(6) The power to enter into a lease as lessor or lessee, with or
without option to renew.
(7) The power to enter into arrangements for exploration and
removal of minerals or other natural resources and enter into a
pooling or unitization agreement.
(8) The power to continue the operation or management of any
business or other enterprise placed in trust.
(9) The power to:
(A) borrow money, to be repaid from trust property or
otherwise; and
(B) encumber, mortgage, pledge, or grant a security interest in
trust property in connection with the exercise of any power.
(10) The power to:
(A) advance money for the benefit of the trust estate and for all
expenses or losses sustained in the administration of the trust;
and
(B) collect any money advanced, without interest or with
interest, at no more than the lowest rate prevailing when
advanced.
(11) The power to prosecute or defend actions, claims, or
proceedings for the protection of:
(A) trust property; and
(B) the trustee in the performance of the trustee's duties.
SEA 18 — CC 1 18
(12) The power to:
(A) pay or contest any claim;
(B) settle a claim by or against the trust by compromise or
arbitration; and
(C) abandon or release, totally or partially, any claim
belonging to the trust.
(13) The power to insure the:
(A) trust estate against damage or loss; and
(B) trustee against liability with respect to third persons.
(14) The power to pay taxes, assessments, and other expenses
incurred in the:
(A) acquisition, retention, and maintenance of the trust
property; and
(B) administration of the trust.
(15) The power to:
(A) vote securities, in person or by a general or special proxy;
(B) hold the securities in the name of a nominee if the trustee
is a corporate trustee; and
(C) effect or approve, and deposit securities in connection
with, any change in the form of the corporation, including:
(i) dissolution;
(ii) liquidation;
(iii) reorganization;
(iv) acquisition; and
(v) merger.
(16) The power to employ persons, including:
(A) attorneys;
(B) accountants;
(C) investment advisors; and
(D) agents;
to advise and assist the trustee in the performance of the trustee's
duties.
(17) The power to effect distribution of property in cash, in kind,
or partly in cash and partly in kind, in divided or undivided
interests.
(18) The power to execute and deliver all instruments necessary
or appropriate to accomplishing or facilitating the exercise of the
trustee's powers.
(19) With respect to an interest in a proprietorship, partnership,
limited liability company, business trust, corporation, or another
form of business or enterprise, the power to:
(A) continue the business or enterprise; and
SEA 18 — CC 1 19
(B) take any action that may be taken by shareholders,
members, or property owners, including:
(i) merging;
(ii) dissolving; or
(iii) changing the form of business organization or
contributing additional capital.
(20) With respect to possible liability for violation of
environmental law, the power to:
(A) inspect or investigate property:
(i) the trustee holds or has been asked to hold; or
(ii) owned or operated by an organization in which the
trustee holds an interest or has been asked to hold an
interest;
to determine the application of environmental law with respect
to the property;
(B) take action to prevent, abate, or remedy an actual or
potential violation of an environmental law affecting property
held directly or indirectly by the trustee before or after the
assertion of a claim or the initiation of governmental
enforcement;
(C) decline to accept property into the trust or disclaim any
power with respect to property that is or may be burdened with
liability for violation of environmental law;
(D) compromise claims against the trust that may be asserted
for an alleged violation of environmental law; and
(E) pay the expense of any inspection, review, abatement, or
remedial action to comply with environmental law.
(21) The power to exercise elections with respect to federal, state,
and local taxes.
(22) The power to select a mode of payment under any employee
benefit plan or retirement plan, annuity, or life insurance payable
to the trustee and exercise rights under the plan, annuity, or
insurance, including the right to:
(A) indemnification:
(i) for expenses; and
(ii) against liabilities; and
(B) take appropriate action to collect the proceeds.
(23) The power to make loans out of trust property, including
loans to a beneficiary on terms and conditions the trustee
determines fair and reasonable under the circumstances. The
trustee has a lien on future distributions for repayment of the
loans.
SEA 18 — CC 1 20
(24) The power to pledge trust property to guarantee loans made
by others to the beneficiary on terms and conditions the trustee
considers to be fair and reasonable under the circumstances. The
trustee has a lien on future distributions for repayment of the
loans.
(25) The power to:
(A) appoint a trustee to act in another jurisdiction with respect
to trust property located in the other jurisdiction;
(B) confer on the appointed trustee all the appointing trustee's
powers and duties;
(C) require the appointed trustee to furnish security; and
(D) remove the appointed trustee.
(26) With regard to a beneficiary who is under a legal disability
or whom the trustee reasonably believes is incapacitated, the
power to pay an amount distributable to the beneficiary by:
(A) paying the amount directly to the beneficiary;
(B) applying the amount for the beneficiary's benefit;
(C) paying the amount to the beneficiary's guardian;
(D) paying the amount to the beneficiary's custodian under
IC 30-2-8.5 to create a custodianship or custodial trust;
(E) paying the amount to an adult relative or another person
having legal or physical care or custody of the beneficiary to
be expended on the beneficiary's behalf, if the trustee does not
know of a guardian, custodian, or custodial trustee; or
(F) managing the amount as a separate fund on the
beneficiary's behalf, subject to the beneficiary's continuing
right to withdraw the distribution.
(27) The power to:
(A) combine at least two (2) trusts into one (1) trust; or
(B) divide one (1) trust into at least two (2) trusts;
after notice to the qualified beneficiaries, if the result does not
impair the rights of any beneficiary or adversely affect
achievement of the purposes of the trust.
(b) Any act under subsection (a)(4), an option under subsection
(a)(5), a lease under subsection (a)(6), an arrangement under
subsection (a)(7), and an encumbrance, mortgage, pledge, or security
interest under subsection (a)(9) may be for a term either within or
extending beyond the term of the trust.
(c) In acquiring, investing, reinvesting, exchanging, retaining,
selling, and managing property for any trust, the trustee thereof shall
exercise the judgment and care required by IC 30-4-3.5. Within the
limitations of the foregoing standard, the trustee is authorized to
SEA 18 — CC 1 21
acquire and retain every kind of property, real, personal, or mixed, and
every kind of investment, including specifically, but without in any way
limiting the generality of the foregoing, bonds, debentures, and other
corporate obligations, stocks, preferred or common, and real estate
mortgages, which persons of prudence, discretion, and intelligence
acquire or retain for their own account, and within the limitations of the
foregoing standard, the trustee is authorized to retain property properly
acquired, without limitation as to time and without regard to its
suitability for original purchase. Within the limitations of the foregoing
standard, the trustee is authorized to sell covered security options and
to purchase back previously sold covered security options.
(d) If a distribution of particular trust assets is to be made to two (2)
or more beneficiaries entitled to receive fractional shares in those
assets, the trustee:
(1) may distribute the particular assets without distributing to
each beneficiary a pro rata share of each asset; However, the
trustee shall:
(1) (2) shall distribute to each beneficiary a pro rata share of the
total fair market value of all of the particular assets as of the date
of distribution; and
(2) cause the distribution to result in a fair and equitable division
among the beneficiaries of capital gain or loss on the assets.
(3) is not required to allocate and distribute particular assets
based upon the potential gain or loss that the beneficiaries
would realize if the particular assets were sold.
(e) If the trust is terminated or partially terminated, the trustee may
send to the beneficiaries a proposal for distribution. If the proposal for
distribution informs the beneficiary that the beneficiary:
(1) has a right to object to the proposed distribution; and
(2) must object not later than thirty (30) days after the proposal
for distribution was sent;
the right of the beneficiary to object to the proposed distribution
terminates if the beneficiary fails to notify the trustee of an objection
within the time limit set forth in subdivision (2).
(f) When any real or personal property subject to a lien (as defined
by IC 29-1-17-9(a)) is specifically distributable, the distributee shall
take the property subject to the lien unless the terms of the trust provide
expressly or by necessary implication that the lien be otherwise paid.
If:
(1) an event occurs that makes the property distributable; and
(2) the holder of a lien on the property receives payment on a
claim based upon the obligation secured by the lien;
SEA 18 — CC 1 22
the property subject to the lien shall be charged with the reimbursement
to the trust of the amount of the payment for the benefit of the
beneficiaries entitled to the distribution, unless the terms of the trust
provide expressly or by necessary implication that the payment be
charged against the residue of the trust estate.
(g) For purposes of subsection (f), a general directive or authority
in the trust for payment of debts does not imply an intent that the
distribution of property subject to a lien be made free from the lien.
(h) IC 32-39-2-8, IC 32-39-2-9, and IC 32-39-2-10 apply to the right
of a trustee acting under a trust to access:
(1) the content of an electronic communication (as defined in
IC 32-39-1-6);
(2) a catalogue of electronic communications (as defined in
IC 32-39-1-5); or
(3) any other digital asset (as defined in IC 32-39-1-10).
SECTION 15. IC 30-4-3-6, AS AMENDED BY P.L.56-2020,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 6. (a) The trustee has a duty to administer a trust
according to the terms of the trust.
(b) Unless the terms of the trust or the provisions of section 1.3 of
this chapter provide otherwise, the trustee also has a duty to do the
following:
(1) Administer the trust in a manner consistent with IC 30-4-3.5.
(2) Take possession of and maintain control over the trust
property.
(3) Preserve the trust property.
(4) Make the trust property productive for both the income and
remainder beneficiary. As used in this subdivision, "productive"
includes the production of income or investment for potential
appreciation.
(5) Keep the trust property separate from the trustee's individual
property and separate from or clearly identifiable from property
subject to another trust.
(6) Maintain clear and accurate accounts with respect to the trust
estate.
(7) Except as provided in subsection (c), keep the following
beneficiaries reasonably informed about the administration of the
trust and of the material facts necessary for the beneficiaries to
protect their interests:
(A) A current income beneficiary.
(B) A beneficiary who will become an income beneficiary
upon the expiration of the term of the current income
SEA 18 — CC 1 23
beneficiary, if the trust has become irrevocable by:
(i) the terms of the trust instrument; or
(ii) the death of the settlor.
A trustee satisfies the requirements of this subdivision by
providing a beneficiary described in clause (A) or (B), upon the
beneficiary's written request, access to the trust's accounting and
financial records concerning the administration of trust property
and the administration of the trust.
(8) Upon:
(A) the trust becoming irrevocable:
(i) by the terms of the trust instrument; or
(ii) by the death of the settlor; and
(B) the written request of an income beneficiary or
remainderman;
promptly provide a copy of the complete trust instrument to the
income beneficiary or remainderman. This subdivision does not
prohibit the terms of the trust from requiring the trustee to
separately provide each beneficiary only the portions of the trust
instrument that describe or pertain to that beneficiary's interest in
the trust and the administrative provisions of the trust instrument
that pertain to all beneficiaries of the trust.
(9) Take whatever action is reasonable to realize on claims
constituting part of the trust property.
(10) Defend actions involving the trust estate.
(11) Supervise any person to whom authority has been delegated.
(12) Determine the trust beneficiaries by acting on information:
(A) the trustee, by reasonable inquiry, considers reliable; and
(B) with respect to heirship, relationship, survivorship, or any
other issue relative to determining a trust beneficiary.
(c) The terms of a trust may expand, restrict, eliminate, or otherwise
vary the right of a beneficiary to be informed of the beneficiary's
interest in a trust for a period of time, including a period of time related
to:
(1) the age of the beneficiary;
(2) the lifetime of a settlor or the spouse of a settlor;
(3) a term of years or a period of time ending on a specific date;
or
(4) a specific event that is certain to occur.
(d) During any period of time that the trust instrument restricts or
eliminates the right of a beneficiary to be informed of the beneficiary's
interest in a trust, a designated representative for the beneficiary:
(1) shall represent that beneficiary and bind that beneficiary's
SEA 18 — CC 1 24
interests for purposes of any judiciary judicial proceeding or
nonjudicial matter involving the trust unless the court finds, after
a hearing upon notice, that a conflict of interest exists between the
beneficiary and the designated representative;
(2) has the authority to initiate or defend and participate in any
proceeding relating to the trust under this article or under IC 30-2
on behalf of the beneficiary; and
(3) shall not disclose to the beneficiary the information provided
by the trustee unless the court orders disclosure or the trustee
agrees to the disclosure.
An alleged conflict of interest between a beneficiary and the
beneficiary's designated representative may be asserted to the court by
the beneficiary whose right to be informed of the beneficiary's interest
in a trust is restricted or eliminated in the trust instrument or by any
other person authorized to represent and bind that beneficiary's interest
under IC 30-4-6-10.5.
(e) If:
(1) a beneficiary is an adult and has not been adjudicated to be an
incapacitated person;
(2) the trust instrument restricts or eliminates the right of the
beneficiary to be informed of the beneficiary's interest in a trust;
and
(3) the beneficiary discovers material information about the
beneficiary's interest in the trust from sources other than the
trustee;
subsections (c) and (d) do not prohibit the beneficiary from demanding
or petitioning for an accounting or statement regarding the trust under
IC 30-4-5-12(c), from receiving a copy of all relevant portions of the
trust instrument, or from demanding and receiving, under subsection
(b)(7), other information about the trust and its administration that is
consistent with the content and scope of the information that the
beneficiary received from sources other than the trustee. The
beneficiary may also initiate and participate in any proceeding against
or with the trustee under this chapter.
SECTION 16. IC 30-4-7-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 7. After a compromise
is executed, an interested person may docket the trust and submit the
following documents to the court for the court's approval:
(1) The agreement executed under section 6 of this chapter.
(2) A copy of the trust instrument filed under IC 30-4-6.
(3) Any other relevant documents.
SECTION 17. IC 30-5-3-3 IS AMENDED TO READ AS
SEA 18 — CC 1 25
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 3. (a) Except as
provided in subsection (b), an attorney in fact may act under a power
of attorney, including executing an instrument on the principal's
behalf under IC 30-5-8-8, without recording the power of attorney
with the county recorder.
(b) An attorney in fact shall record the power of attorney authorizing
the execution of a document that must be recorded before presenting
the document for recording.
(c) A county recorder may not accept a document for recording if
the document:
(1) was executed; and
(2) is presented;
by an attorney in fact whose power of attorney is unrecorded.
(d) Except as provided in subsection (e), a document creating a
power of attorney must comply with recording requirements, including
notary and preparation statements, to be recorded under this section.
(e) An original document that created a power of attorney or a
copy of the document that created the power of attorney may be
recorded under this section if:
(1) the original document was executed by the principal in
accordance with IC 30-5-4-1(a)(4)(B) or IC 30-5-11-4(a)(2);
and
(2) a proof (as defined in IC 32-21-2-1.7) that:
(A) is signed by at least one (1) of the attesting witnesses;
and
(B) complies with IC 33-42;
is attached to the original document or the copy.
(e) (f) A document that is presented by an attorney in fact for
recording must reference the book and page or instrument number
where the instrument creating the power of attorney is recorded before
the document may be presented by the attorney in fact.
SECTION 18. IC 30-5-8-8 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2024]: Sec. 8. (a) This section applies to an instrument executed
under this article by an attorney in fact on a principal's behalf.
(b) As used in this section, "agent" has the same meaning as
"attorney in fact" as defined in IC 30-5-2-2.
(c) A principal's power of attorney may authorize an attorney
in fact to execute an instrument on the principal's behalf if a
statement appears:
(1) above;
(2) beside; or
SEA 18 — CC 1 26
(3) below;
the attorney in fact's signature.
(d) A statement under subsection (c) must:
(1) identify the principal; and
(2) indicate that the attorney in fact is acting as the principal's
agent under the power of attorney.
(e) Any of the following example signature formats comply with
this section and indicate that the attorney in fact is acting as the
principal's agent under the power of attorney:
(1) Attorney in fact's signature
(Principal's name) by (attorney in fact's name), agent
(2) Principal's signature signed by the attorney in fact
(Principal's name) by (attorney in fact's name), POA
(3) Attorney in fact's signature
(Principal's name) by (attorney in fact's name), AIF
(4) Principal's printed name
Attorney in fact's signature
By: (Attorney in fact's name), as attorney in fact
(5) Principal's printed name
Attorney in fact's signature
By: (Attorney in fact's name), agent
(6) Principal's printed name
Attorney in fact's signature
By: (Attorney in fact's name), POA
(7) Principal's printed name
Attorney in fact's signature
By: (Attorney in fact's name), AIF
The examples listed in this subsection are not an exhaustive list.
(f) If an attorney in fact executes a deed or other instrument
that must be recorded in the office of a county recorder, the
instrument may incorporate by reference part or all of the
principal's power of attorney that was previously recorded under
IC 30-5-3-3.
SECTION 19. IC 32-17-14-11, AS AMENDED BY HEA
1034-2024, SECTION 2, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2024]: Sec. 11. (a) A transfer on death deed
transfers the interest provided to the beneficiary if the transfer on death
deed is:
(1) executed by the owner or owner's legal representative; and
(2) recorded with the recorder of deeds in the county in which the
real property is situated before the death of the owner.
(b) A transfer on death deed is void if it is not recorded with the
SEA 18 — CC 1 27
recorder of deeds in the county in which the real property is situated
before the death of the owner.
(c) A transfer on death deed is not required to be supported by
consideration or delivered to the grantee beneficiary.
(d) A transfer on death deed may be used to transfer an interest in
real property to either a revocable or an irrevocable trust.
(e) If the owner records a transfer on death deed, the effect of the
recording the transfer on death deed is determined as follows:
(1) If the owner's interest in the real property is as a tenant by the
entirety, the conveyance is inoperable and void unless the other
spouse joins in the conveyance.
(2) If the owner's interest in the real property is as a joint tenant
with rights of survivorship, the conveyance severs the joint
tenancy and the cotenancy becomes a tenancy in common.
(3) If the owner's interest in the real property is as a joint tenant
with rights of survivorship and the property is subject to a
beneficiary designation, a conveyance of any joint owner's interest
has no effect on the original beneficiary designation for the
nonsevering joint tenant.
(4) If the owner's interest is as a tenant in common, the owner's
interest passes to the beneficiary as a transfer on death transfer.
(5) If the owner's interest is a life estate determined by the owner's
life, the conveyance is inoperable and void.
(6) If the owner's interest is any other interest, the interest passes
in accordance with this chapter and the terms and conditions of
the conveyance establishing the interest. If a conflict exists
between the conveyance establishing the interest and this chapter,
the terms and conditions of the conveyance establishing the
interest prevail.
(f) A beneficiary designation in a transfer on death deed may be
worded in substance as "(insert owner's name) conveys and warrants
(or quitclaims) to (insert owner's name), TOD to (insert beneficiary's
name)". This example is not intended to be exhaustive.
(g) A transfer on death deed using the phrase "pay on death to" or
the abbreviation "POD" may not be construed to require the liquidation
of the real property being transferred.
(h) This section does not preclude other methods of conveying real
property that are permitted by law and have the effect of postponing
enjoyment of an interest in real property until after the death of the
owner. This section applies only to transfer on death deeds and does
not invalidate any deed that is otherwise effective by law to convey title
to the interest and estates provided in the deed.
SEA 18 — CC 1 28
(i) The endorsement of the county auditor under IC 36-2-11-14 and
IC 36-2-9-18 is not necessary to record a transfer on death deed under
this section.
(j) For a transfer on death deed executed after December 31, 2024,
the transfer on death deed may include the following warning:
"WARNING: After the death of the owner, the owner's insurance
policy is required by IC 27-1-13-18 to cover the real property
transferred for a period of time as set forth in IC 27-1-13-18(e)
and IC 27-1-13-18(f). Once the period of time as set forth in
IC 27-1-13-18(e) and IC 27-1-13-18(f) expires, the insurance
policy may no longer cover the real property and the beneficiary
of a transfer on death deed and the real property may become
uninsured.".
A transfer on death deed is not invalid due to the failure to include the
warning described in this subsection, or due to a defect in the wording
of the warning described in this subsection.
SECTION 20. IC 32-17-14-13, AS ADDED BY P.L.143-2009,
SECTION 41, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 13. (a) A transferor An owner of property, with
or without consideration, may execute a written instrument directly
transferring the property to one (1) or more individuals as a transferee
grantee to hold as owner in beneficiary form. Any grantee may be an
individual different from or in addition to the owner who executes
the instrument.
(b) A transferee grantee under an instrument described in
subsection (a) is considered the owner of the property for all purposes
and has all the rights to the property provided by law to the owner of
the property, including the right to revoke or change the beneficiary
designation.
(c) A direct transfer of property to a transferee grantee to hold as
owner in beneficiary form is effective when the written instrument
perfecting the transfer becomes effective to make the transferee
grantee the owner.
(d) A beneficiary designation in an instrument described in
subsection (a) may be worded in substance as "(insert owner's
name) conveys and warrants (or quitclaims) to (insert grantee's
name(s)), TOD to (insert beneficiary's name)". This example is not
intended to be exhaustive.
(e) A beneficiary designation in an instrument described in
subsection (a) is void if the instrument:
(1) conveys real property; and
(2) is not recorded with the recorder of deeds in the county in
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which the real property is situated before the grantee's death.
(f) An instrument described in subsection (a) is effective to
convey title to the grantee regardless of whether a beneficiary
designation is void under subsection (e).
(g) If an instrument described in subsection (a) conveys real
property, the endorsement of the county auditor under
IC 36-2-11-14 and IC 36-2-9-18 is necessary to record the
instrument.
SECTION 21. IC 32-21-1-14, AS AMENDED BY P.L.185-2021,
SECTION 35, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 14. A conveyance of land by an attorney in fact
(as defined in IC 30-5-2-2) under IC 30-5-3-3 is not good effective
unless the attorney in fact is empowered by to make the conveyance
under a power of attorney (as defined in IC 30-5-2-7) that:
(1) is executed or signed by the principal (as defined in
IC 30-5-2-8); and
(2) has an acknowledgment (as defined in IC 33-42-0.5-2) or a
proof (as defined in and permitted under IC 32-21-2).
SECTION 22. IC 32-21-2-16 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2024]: Sec. 16. (a) A county recorder shall
include a cross-reference concerning a previously recorded
document if:
(1) the person presenting the document for recording has
made a request to the county recorder for a cross-reference
between the document being recorded and a previously
recorded document; and
(2) the front page of the document to be recorded contains a
cross-reference to a previously recorded document.
(b) The requirements of subsection (a) do not apply to the
following:
(1) A reference required in an affidavit under IC 29-1-7-23 to
a previously recorded deed or other instrument.
(2) A reference required in a document under IC 30-5-3-3 to
a previously recorded power of attorney.
(3) A reference required in an affidavit under IC 32-17-14-26
to a previously recorded transfer on death deed.
(4) A reference required in an easement under IC 32-23-2-5
to a recorded plat or a recorded deed of record.
(5) A reference required in an affidavit of service of notice
under IC 32-28-13-7 to a statement of intention to hold a
common law lien.
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(6) A reference required in an affidavit of service of notice
under IC 32-28-14-9 to a homeowners association lien.
(7) A reference required in a document under a statute or
county ordinance to a previously recorded document.
SECTION 23. IC 36-2-9-18, AS AMENDED BY P.L.26-2022,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 18. (a) Before the auditor makes the endorsement
required by IC 36-2-11-14, the auditor may require that a tax
identification number identifying the affected real property be placed
on an instrument that conveys, creates, encumbers, assigns, or
otherwise disposes of an interest in or a lien on real property. The tax
identification number may be established by the auditor with the
approval of the state board of accounts. If the tax identification number
is affixed to the instrument or if a tax identification number is not
required, the auditor shall make the proper endorsement on demand.
(b) On request, a county auditor shall provide assistance in
obtaining the proper tax identification number for instruments subject
to this section.
(c) The tax administration number established by this section is for
use in administering statutes concerning taxation of real property and
is not competent evidence of the location or size of the real property
affected by the instrument.
(d) After December 31, 2023, A county auditor may not refuse to
endorse a deed or instrument under this section as required by
IC 36-2-11-14 because the deed or instrument is:
(1) an electronic document; or
(2) made under IC 32-17-14.
(e) The legislative body of a county shall adopt an ordinance
requiring the auditor to collect a fee in the amount of ten dollars ($10)
for each:
(1) deed; or
(2) legal description of each parcel contained in the deed;
for which the auditor makes a real property endorsement. This fee is in
addition to any other fee provided by law. The auditor shall place the
revenue received under this subsection in a dedicated fund for use in
maintaining property tax records, in traditional or electronic format.
SECTION 24. IC 36-2-11-14, AS AMENDED BY P.L.106-2007,
SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 14. (a) The recorder may record:
(1) a deed of partition;
(2) a conveyance of land; or
(3) an affidavit of transfer to real estate; or
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(4) a deed or instrument made under IC 32-17-14;
only if it has been endorsed by the auditor of the proper county as "duly
entered for taxation subject to final acceptance for transfer", "not
taxable", or "duly entered for taxation" as provided by IC 36-2-9-18.
(b) A county auditor may not refuse to endorse a deed or
instrument under IC 36-2-9-18 as required by this section because
the deed or instrument is made under IC 32-17-14.
(b) (c) A recorder who violates this section shall forfeit the sum of
five dollars ($5), to be recovered by an action in the name of the
county, for the benefit of the common school fund.
SEA 18 — CC 1 President of the Senate
President Pro Tempore
Speaker of the House of Representatives
Governor of the State of Indiana
Date: Time:
SEA 18 — CC 1