Introduced Version
HOUSE BILL No. 1116
_____
DIGEST OF INTRODUCED BILL
Citations Affected:
IC 29-1-5
;
IC 29-2-5-1
;
IC 30-4-2.1
; IC 32-17-8.
Synopsis: Various probate and trust matters. Specifies that a will may
be executed, attested, and made self-proving by including in the will a
self-proving clause signed by the testator and witnesses. Amends the
rule against perpetuities to allow for the creation of a perpetual trust.
Changes the publication of notice requirements for a court to presume
that a person is dead. Establishes rules for interpreting trusts. (The
introduced version of this bill was prepared by the probate code study
commission).
Effective: July 1, 2003.
Kuzman, Foley
January 7, 2003, read first time and referred to Committee on Judiciary.
Introduced
First Regular Session 113th General Assembly (2003)
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 2002 Regular or Special Session of the General Assembly.
HOUSE BILL No. 1116
A BILL FOR AN ACT to amend the Indiana Code concerning
probate.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 29-1-5-3; (03)IN1116.1.1. -->
SECTION 1.
IC 29-1-5-3
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 3. (a) The execution of This section
applies to a will executed before, on, or after July 1, 2003. A will,
other than a nuncupative will, must may be attested by the signature
of the testator and of at least two (2) witnesses as follows: on one (1)
of the following:
(1) An attestation clause under subsection (b).
(2) A self-proving clause under section 3.1(c) of this chapter.
(3) A self-proving clause under section 3.1(d) of this chapter.
(b) A will may be attested as follows:
(1) The testator, in the presence of two (2) or more attesting
witnesses, shall signify to them the witnesses that the instrument
is the testator's will and either:
(A) sign the will;
(B) acknowledge the testator's signature already made; or
(C) at the testator's direction and in the testator's presence have
someone else sign the testator's name.
(2) The attesting witnesses must sign in the presence of the
testator and each other.
(b) An attested will may at the time of its execution or at any
subsequent date be made self-proved by the acknowledgment of the
will by the testator and the verifications of the witnesses, each made
under the laws of Indiana and evidenced by the signatures of the
testator and witnesses attached or annexed to the will in form and
content substantially as follows:
UNDER PENALTIES FOR PERJURY, we, the undersigned testator
and the undersigned witnesses, respectively, whose names are signed
to the attached or foregoing instrument declare:
(1) that the testator executed the instrument as the testator's will;
(2) that, in the presence of both witnesses, the testator signed or
acknowledged the signature already made or directed another to
sign for the testator in the testator's presence;
(3) that the testator executed the will as a free and voluntary act
for the purposes expressed in it;
(4) that each of the witnesses, in the presence of the testator and
of each other, signed the will as a witness;
(5) that the testator was of sound mind when the will was
executed; and
(6) that to the best knowledge of each of the witnesses the testator
was, at the time the will was executed, eighteen (18) or more
years of age or was a member of the armed forces or of the
merchant marine of the United States or its allies.
______________
Testator
____ ______________
Date Witness
______________
Witness
(c) Subject to the applicable Indiana Rules of Trial Procedure, a
videotape may be admissible as evidence of the following:
(1) The proper execution of a will.
(2) The intentions of a testator.
(3) The mental state or capacity of a testator.
(4) The authenticity of a will.
(5) Matters that are determined by a court to be relevant to the
probate of a will.
(d) This subsection applies to all wills, regardless of the date a will
is executed. A will is presumed to be self-proved if the will includes an
attestation clause signed by the witnesses that indicates that:
(1) The testator signified that the instrument is the testator's will;
(2) in the presence of at least two (2) witnesses, the testator
signed the instrument or acknowledged the testator's signature
already made or directed another to sign for the testator in the
testator's presence;
(3) the testator executed the instrument freely and voluntarily for
the purposes expressed in it;
(4) each of the witnesses, in the testator's presence and in the
presence of all other witnesses, is executing the instrument as a
witness;
(5) the testator was of sound mind when the will was executed;
and
(6) the testator is, to the best of the knowledge of each of the
witnesses, either:
(A) at least eighteen (18) years of age; or
(B) a member of the armed forces or the merchant marine of
the United States or its allies.
SOURCE: IC 29-1-5-3.1; (03)IN1116.1.2. -->
SECTION 2.
IC 29-1-5-3.1
IS ADDED TO THE INDIANA CODE
AS A
NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]:
Sec. 3.1. (a) This section applies to a will executed before,
on, or after July 1, 2003. When a will is executed, the will may be:
(1) attested; and
(2) made self-proving;
by incorporating into or attaching to the will a self-proving clause
that meets the requirements of subsection (c) or (d). If the testator
and witnesses sign a self-proving clause that meets the
requirements of subsection (c) or (d) at the time the will is
executed, an attestation clause signed by the testator and witnesses
under section 3(b) of this chapter is not required.
(b) If a will is executed by the signatures of the testator and
witnesses on an attestation clause under section 3(b) of this
chapter, the will may be made self-proving at a later date by
attaching to the will a self-proving clause signed by the testator and
witnesses that meets the requirements of subsection (c) or (d).
(c) A self-proving clause must contain the acknowledgment of
the will by the testator and the verifications of the witnesses, each
made under the laws of Indiana and evidenced by the signatures of
the testator and witnesses attached or annexed to the will in form
and content substantially as follows:
UNDER PENALTIES FOR PERJURY, we, the undersigned
testator and the undersigned witnesses, respectively, whose names
are signed to the attached or foregoing instrument declare:
(1) that the testator executed the instrument as the testator's
will;
(2) that, in the presence of both witnesses, the testator signed
or acknowledged the signature already made or directed
another to sign for the testator in the testator's presence;
(3) that the testator executed the will as a free and voluntary
act for the purposes expressed in it;
(4) that each of the witnesses, in the presence of the testator
and of each other, signed the will as a witness;
(5) that the testator was of sound mind when the will was
executed; and
(6) that to the best knowledge of each of the witnesses the
testator was, at the time the will was executed, at least
eighteen (18) years of age or was a member of the armed
forces or of the merchant marine of the United States or its
allies.
______________
Testator
____ ______________
Date Witness
______________
Witness
(d) A will is attested and self-proved if the will includes or has
attached a clause signed by the testator and the witnesses that
indicates that:
(1) the testator signified that the instrument is the testator's
will;
(2) in the presence of at least two (2) witnesses, the testator
signed the instrument or acknowledged the testator's
signature already made or directed another to sign for the
testator in the testator's presence;
(3) the testator executed the instrument freely and voluntarily
for the purposes expressed in it;
(4) each of the witnesses, in the testator's presence and in the
presence of all other witnesses, is executing the instrument as
a witness;
(5) the testator was of sound mind when the will was executed;
and
(6) the testator is, to the best of the knowledge of each of the
witnesses, either:
(A) at least eighteen (18) years of age; or
(B) a member of the armed forces or the merchant marine
of the United States or its allies.
SOURCE: IC 29-1-5-3.2; (03)IN1116.1.3. -->
SECTION 3.
IC 29-1-5-3.2
IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2003]: Sec. 3.2. Subject to the applicable Indiana Rules of Trial
Procedure, a videotape may be admissible as evidence of the
following:
(1) The proper execution of a will.
(2) The intentions of a testator.
(3) The mental state or capacity of a testator.
(4) The authenticity of a will.
(5) Matters that are determined by a court to be relevant to
the probate of a will.
SOURCE: IC 29-1-5-6; (03)IN1116.1.4. -->
SECTION 4.
IC 29-1-5-6
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 6. No will in writing, nor any part
thereof, except as in this article provided, shall be revoked, unless the
testator, or some other person in his presence and by his direction, with
intent to revoke, shall destroy or mutilate the same; or such testator
shall execute other writing for that purpose, signed, subscribed and
attested as required in section 3 or 3.1 of this chapter. A will can be
revoked in part only by the execution of a writing as herein provided.
And if, after the making of any will, the testator shall execute a second,
a revocation of the second shall not revive the first will, unless it shall
appear by the terms of such revocation to have been his intent to revive
it, or, unless, after such revocation, he shall duly republish the previous
will.
SOURCE: IC 29-1-5-9; (03)IN1116.1.5. -->
SECTION 5.
IC 29-1-5-9
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 9. An instrument creating an inter
vivos trust in order to be valid need not be executed as a testamentary
instrument pursuant to section 3 or 3.1 of this chapter, even though
such trust instrument reserves to the maker or settlor the power to
revoke, or the power to alter or amend, or the power to control
investments, or the power to consume the principal, or because it
reserves to the maker or settlor any one or more of said powers.
SOURCE: IC 29-2-5-1; (03)IN1116.1.6. -->
SECTION 6.
IC 29-2-5-1
IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2003]: Sec. 1. (a) When any resident of Indiana
is absent from the individual's usual place of residence and gone to
parts unknown for a period of five (5) years, without having made any
sufficient provision for the care and management of the individual's
property, real or personal, and the court having probate jurisdiction in
the county where the individual last resided or where the property is
situated determines that:
(1) the individual's property is suffering waste for want of proper
care; or
(2) the family of the individual is in need of the use and proceeds
of the property for support or education (or that the sale of the
property, or part thereof, is necessary for the payment of the
individual's debts);
it shall be presumed and taken by the court that the individual is dead.
The court has jurisdiction over the estate of the individual in the same
manner and to the same extent as if the individual were dead. The court
shall appoint an administrator of the individual's estate, who shall have
all of the powers and rights over the estate and be subject to all of the
liabilities and duties that appertain to administrators of decedents'
estates.
(b) Before the court may determine that an individual should be
presumed dead, notice to the individual must be published for thirty
(30) days once each week for three (3) consecutive weeks, with the
first notice published more than thirty (30) days before the hearing
in a newspaper of general circulation in (1) the county where the
individual last resided or where the individual's property is located. and
(2) the state capital.
(c) The will of an individual who is presumed dead under this
section is admissible to probate under IC 29-1 and shall be probated as
the will of a deceased individual.
SOURCE: IC 30-4-2.1; (03)IN1116.1.7. -->
SECTION 7.
IC 30-4-2.1
IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]:
Chapter 2.1. Rules for Interpretation of Trusts
Sec. 1. In the absence of a contrary intent appearing in the trust,
a trust shall be construed in accordance with the rules in this
chapter.
Sec. 2. (a) Except as provided in subsection (b), in construing a
trust naming as beneficiary a person described by relationship to
the settlor or to another, a person adopted before:
(1) the person is twenty-one (21) years of age; and
(2) the death of the settlor;
shall be considered the child of the adopting parent or parents and
not the child of the natural or previous adopting parents.
(b) If a natural parent or previous adopting parent marries the
adopting parent before the settlor's death, the adopted person shall
also be considered the child of the natural or previous adopting
parent.
(c) A person adopted by the settlor after the person becomes
twenty-one (21) years of age shall be considered the child of the
settlor. However, no other person is entitled to establish the
relationship to the settlor through the child.
Sec. 3. A provision in a trust that provides, or has the effect of
providing, that a beneficiary forfeits a benefit from the trust if the
beneficiary contests the trust is void.
Sec. 4. (a) Except as provided in subsection (b) and section 5 of
this chapter, when a settlor fails to provide in the settlor's trust for
a child who is:
(1) born or adopted after the making of the settlor's trust; and
(2) born before or after the settlor's death;
the child is entitled to receive a share in the trust assets. The child's
share of the trust assets shall be determined by ascertaining what
the child's intestate share would have been under
IC 29-1-2-1
if the
settlor had died intestate. The child is entitled to receive a share of
the trust assets equivalent in value to the intestacy share
determined under
IC 29-1-2-1.
(b) Subsection (a) does not apply to a child of the settlor if:
(1) it appears from the trust that the settlor intentionally
failed to provide in the settlor's trust for the child; or
(2) when the trust was executed:
(A) the settlor had at least one (1) child known to the
settlor to be living; and
(B) the settlor devised substantially all of the settlor's
estate to the settlor's surviving spouse.
Sec. 5. (a) Except as provided in subsection (b), if, at the time of
the making of the trust, the settlor:
(1) believes a child of the settlor to be dead; and
(2) fails to provide for the child in the settlor's trust;
the child is entitled to receive a share in the trust assets. The child's
share of the trust assets shall be determined by ascertaining what
the child's intestate share would have been under
IC 29-1-2-1
if the
settlor had died intestate. The child is entitled to receive a share of
the trust assets equivalent in value to the intestacy share
determined under
IC 29-1-2-1.
(b) Subsection (a) does not apply to a child of the settlor if it
appears from the trust or from other evidence that the settlor
would not have devised anything to the child had the settlor known
that the child was alive.
Sec. 6. If a devise of real or personal property, not included in
the residuary clause of the trust:
(1) is void;
(2) is revoked; or
(3) lapses;
the devise becomes a part of the residue and passes to the residuary
beneficiary.
Sec. 7. (a) As used in this section, "descendant" includes the
following:
(1) A child adopted before the child is twenty-one (21) years
of age by:
(A) the settlor; or
(B) the settlor's descendants.
(2) A descendant of a child adopted as set forth in subdivision
(1).
(3) A child who is born of the mother out of wedlock in either
of the following circumstances:
(A) The mother is a descendant of the settlor.
(B) The mother is the settlor.
(4) If the right of a child born out of wedlock to inherit from
the father is or has been established in the manner provided
under
IC 29-1-2-7
, the child, in either of the following
circumstances:
(A) The father is a descendant of the settlor.
(B) The father is the settlor.
(5) A descendant of a child born out of wedlock as set forth in
subdivisions (3) and (4).
(b) If:
(1) an estate, real or personal, is devised to a descendant of the
settlor; and
(2) the beneficiary:
(A) dies during the lifetime of the settlor before or after the
execution of the trust; and
(B) leaves a descendant who survives the settlor;
the devise does not lapse, but the property devised vests in the
surviving descendant of the beneficiary as if the beneficiary had
survived the settlor and died intestate.
Sec. 8. Kindred of the half blood are entitled to receive the same
trust interest that they would have received if they had been of the
whole blood.
SOURCE: IC 32-17-8-3; (03)IN1116.1.8. -->
SECTION 8.
IC 32-17-8-3
, AS ADDED BY P.L.2-2002, SECTION
2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]: Sec. 3. (a) A nonvested property interest is valid if:
(1) when the interest is created, the interest is certain to vest or
terminate not later than twenty-one (21) years after the death of
an individual then alive; or
(2) the interest either vests or terminates within ninety (90) years
after the interest's creation; or
(3) the interest is in a trust and:
(A) the trust does not:
(i) require the accumulation of income; and
(ii) suspend the power of alienation;
for longer than specified in subdivision (1) or (2); or
(B) the trust:
(i) does not require the accumulation of income for
longer than specified in subdivision (1) or (2); and
(ii) gives the trustee the power to sell trust assets.
(b) A general power of appointment not presently exercisable
because of a condition precedent is valid if:
(1) when the power is created, the condition precedent is certain
to be satisfied or become impossible to satisfy not later than
twenty-one (21) years after the death of an individual then alive;
or
(2) the condition precedent either is satisfied or becomes
impossible to satisfy within ninety (90) years after the condition
precedent's creation.
(c) A nongeneral power of appointment or a general testamentary
power of appointment is valid if:
(1) when the power is created, the power is certain to be
irrevocably exercised or otherwise to terminate not later than
twenty-one (21) years after the death of an individual then alive;
or
(2) the power is irrevocably exercised or otherwise terminates
within ninety (90) years after the power's creation; or
(3) the power is created in a trust that meets the conditions of
subsection (a)(3).
(d) In determining whether a nonvested property interest or a power
of appointment is valid under subsection (a)(1), (b)(1), or (c)(1), the
possibility that a child will be born to an individual after the
individual's death is disregarded.
SOURCE: IC 32-17-8-4; (03)IN1116.1.9. -->
SECTION 9.
IC 32-17-8-4
, AS ADDED BY P.L.2-2002, SECTION
2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2003]: Sec. 4. (a) Except as provided in subsections (b)
and (c)
through (d) and in section 1(a) of this chapter, the time of creation of
a nonvested property interest or a power of appointment is determined
under general principles of property law.
(b) For purposes of this chapter, if there is a person who alone can
exercise a power created by a governing instrument to become the
unqualified beneficial owner of:
(1) a nonvested property interest; or
(2) a property interest subject to a power of appointment
described in section 3(b) or 3(c) of this chapter;
the nonvested property interest or power of appointment is created
when the power to become the unqualified beneficial owner terminates.
(c) For purposes of this chapter, a nonvested property interest or a
power of appointment arising from a transfer of property to a
previously funded trust or other existing property arrangement is
created when the nonvested property interest or power of appointment
in the original contribution was created.
(d) For purposes of this chapter, a vested or nonvested property
interest or power of appointment arising from the exercise of a
nongeneral power of appointment is created when the nongeneral
power of appointment was deemed created.