Intestate succession is how a court determines how your estate is distributed when you have no valid Will. Having a valid Will is called testate, while not have a Will is called intestate. The rules governing intestate succession vary by state. In Indiana, these rules are found in the Indiana Probate Code (Ind. Code § 29-1-2). This article will only cover the general rules of Indiana intestate succession.
How Common is Intestate Succession?
Unfortunately, a significant number of Americans do not have a Will. According to a 2024 study by Caring.com, sixty-eight percent (68%) of Americans lack a valid Will. Moreover, while the reasons for not having a Will or estate plan vary from person to person, what is certain is that everyone without a Will will have their possessions distributed according to their state’s intestate succession laws. This leaves a majority of Americans with distributions that may not accurately reflect their wishes.
[S]ixty-eight percent (68%) of Americans lack a valid Will.
What Happens in Indiana?
Intestate succession in Indiana starts with your living relatives. The makeup of your family determines who gets what and how much of it they get. Examples include: your spouse, children from both current and prior marriages or born out of wedlock, parents, and siblings. The following table is a simple outline of the major distribution results according to Indiana intestate succession laws.
| Survivor(s) | Distribution |
|---|---|
| Spouse only | Spouse receives the entire estate |
| Descendants only | Descendants split the entire estate |
| Spouse and Descendants (all children from the same Spouse) | Spouse inherits 50% of the estate; children inherit the remaining 50% |
| Spouse and at least one Descendant (child from a prior Spouse) | Spouse inherits 50% of intestate personal property and 25% of the fair market value of real estate; Descendants inherit everything else |
| Spouse and Parents | Spouse inherits 75% of intestate property; Parents inherit 25% |
| Parents only (no Spouse or Descendants) | Parents inherit the entire estate |
| Siblings only | Siblings inherit the entire estate |
| Parents and Siblings | Parents and Siblings inherit equally, but a Parent’s share must be at least 25%. |
What if I Have a Will?
Good job! You are on your way to avoiding intestate succession. However, only a validly executed Will allows a person to avoid intestacy. Improperly executed Wills may result in unintended consequences for the testator – the person who made the Will. If the testator had a valid prior Will, that Will could be what the court rules is the actual Will. If a presumed testator has no prior valid Will, they are intestate and intestate succession rules kick in.
What makes a Will valid in Indiana?
Just like intestate succession, the Indiana Probate Code determines the criteria for what makes a valid Will (Ind. Code § 29-1-5). There are generally three main requirements for a valid Will in Indiana, with additional requirements placed on the Testator:
- The Will must be in writing;
- The Will must be signed by the testator;
- The Will signing must be witnessed by two uninterested persons (someone who does not benefit or receive something from the Testator);
- The Testator must be competent (have the mental capacity to understand what they are doing by signing the Will);
- The Testator must sign voluntarily (cannot be forced or pressured to sign).
Wills that do not meet this criteria are invalid and will likely result in intestate succession.
I have a “Do-It-Yourself” Will. Is that enough?
Some people see “Do-It-Yourself” Wills as a quick and cost effective way to avoid intestate succession. But beware! Improper execution of a Will can lead to the very same instate succession result. One of the biggest issues that can come from a “Do-It-Yourself” Will is not distributing all of your belongings. By forgetting to list an asset, you accidentally allow the rules of intestate succession to govern distribution of that asset.
It’s Your Choice
Having a Will not only gives you control over who inherits your property, but also can help avoid unwanted family disputes and reduce legal costs and time associated with probate, including avoiding a Will contest. A Will contest is when a person brings a lawsuit to challenge the validity of a Will. Having a Will is a choice and what you are choosing is if you or state law will determine who inherits your property.
If you are interested in learning more about Wills and Estate Plans, contact us to schedule a consultation with one of our attorneys.