Citations Affected: IC 6-4.1; IC 9-17; IC 9-31; IC 23-14; IC 25-15;
IC 29-1; IC 29-2; IC 29-3; IC 30-2; IC 30-5; IC 32-17; IC 32-21;
IC 34-9; IC 34-24; IC 34-30; IC 35-41; IC 35-45; noncode.
January 13, 2009, read first time and referred to Committee on Judiciary.
February 19, 2009, amended, reported _ Do Pass.
February 23, 2009, read second time, amended, ordered engrossed.
beneficiary of a protected person's multiple party account is entitled to receive from the protected person's estate when a guardian has used assets of the multiple party account. Makes numerous changes and additions to the power of attorney statutes. Specifies mailing address requirements for recording conveyances. Specifies that the statute of limitations period for the criminal offenses of misusing funeral trust or preneed escrow accounts is five years after the date of the death of the settlor or purchaser. Specifies that the statute of limitations period for the criminal offense of misusing a cemetery perpetual care fund is five years after the earlier of: (1) the date the state discovers evidence of the offense; or (2) the date the state could have discovered evidence of the offense through due diligence. Provides the method for determining the amount a joint owner or beneficiary of a protected person's multiple party account is entitled to receive from the protected person's estate when a guardian has used assets of the multiple party account. Authorizes individuals to designate beneficiaries to receive certain forms of property, including real property, upon the death of the individual. Specifies that the new statute does not apply to the transfer on death (TOD) transfer of TOD securities registered before July 1, 2009, or pay on death (POD) accounts established before July 1, 2009, which remain subject to current law. Establishes a statutory form for a funeral planning declaration that allows a person to provide instructions concerning the person's funeral arrangements. Provides that the declaration may be used to designate an individual who will make arrangements after the person's death. Provides that a person designated in a funeral planning declaration is first in the priority and that a person designated in a health care power of attorney is second in the priority of individuals who can authorize the cremation of another person's remains and who may authorize the owner of a cemetery to inter, entomb, or inurn the body or cremated remains of a deceased human. Specifies that a person acting as the attorney in fact under a health care power of attorney has the power to execute a funeral planning declaration on behalf of the principal. Provides that a person who relies in good faith on a funeral planning declaration is immune from liability to the same extent as if the person had dealt directly with the declarant and the declarant had been a competent and living person. Makes a technical correction. (The introduced version of this bill was prepared by the probate code study commission.)
A BILL FOR AN ACT to amend the Indiana Code concerning
probate and trusts.
indicates that the individual is the sole owner of the vehicle may create
an interest in the vehicle that is transferrable on the death of the
individual by obtaining a certificate of title conveying the interest in the
vehicle to one (1) or more named individuals as transfer on death
beneficiaries.
(b) Subject to subsection (e), an interest in a vehicle transferred
under this section vests upon the death of the transferor.
(c) A certificate of title that is:
(1) worded in substance as "A.B. transfers on death to C.D."; and
(2) signed by the transferor;
is a good and sufficient conveyance on the death of the transferor to the
transferee.
(d) A certificate of title obtained under this section is not required
to be:
(1) supported by consideration; or
(2) delivered to the named transfer on death beneficiary;
to be effective.
(e) Upon the death of an individual conveying an interest in a
vehicle in a certificate of title obtained under this section, the interest
in the vehicle is transferred to each beneficiary who:
(1) is named in the certificate; and
(2) survives the transferor.
(f) A transfer of an interest in a vehicle under this section is subject
to IC 6-4.1.
(g) A certificate of title designating a transfer on death beneficiary
is not testamentary.
(h) In general, IC 32-17-14 applies to a certificate of title
designating a transfer on death beneficiary. However, a particular
provision of IC 32-17-14 does not apply if it is inconsistent with the
requirements of this section or IC 9-17-2-2(b).
survived by both parents, either parent may serve as the
authorizing agent unless the crematory authority receives a
written objection to the cremation from the other parent.
(5) (6) The individual in the next degree of kinship under
IC 29-1-2-1 to inherit the estate of the decedent. If more than one
(1) individual of the same degree is surviving, any person of that
degree may serve as the authorizing agent unless the crematory
authority receives a written objection to the cremation from one
(1) or more persons of the same degree.
(6) (7) In the case of an indigent or other individual whose final
disposition is the responsibility of the state or township, the
following may serve as the authorizing agent:
(A) If none of the persons identified in subdivisions (1)
through (5) of this section (6) are available:
(i) a public administrator, including a responsible township
trustee or the trustee's designee; or
(ii) the coroner.
(B) A state appointed guardian.
However, an indigent decedent may not be cremated if a
surviving family member objects to the cremation or if cremation
would be contrary to the religious practices of the deceased
individual as expressed by the individual or the individual's
family.
(7) (8) In the absence of any person under subdivisions (1)
through (6), (7), any person willing to assume the responsibility
as the authorizing agent, as specified in this article.
(b) When a body part of a nondeceased individual is to be cremated,
a representative of the institution that has arranged with the crematory
authority to cremate the body part may serve as the authorizing agent.
(c) If:
(1) the death of the decedent appears to have been the result of:
(A) murder (IC 35-42-1-1);
(B) voluntary manslaughter (IC 35-42-1-3); or
(C) another criminal act, if the death does not result from the
operation of a vehicle; and
(2) the coroner, in consultation with the law enforcement agency
investigating the death of the decedent, determines that there is a
reasonable suspicion that a person described in subsection (a)
committed the offense;
the person referred to in subdivision (2) may not serve as the
authorizing agent.
(d) The coroner, in consultation with the law enforcement agency
investigating the death of the decedent, shall inform the crematory
authority of the determination referred to in subsection (c)(2).
incapacitated from exercising the authorization, and the incapacity is
certified to by a qualified medical doctor.
(b) A cemetery owner is not liable in any action for making an
interment, entombment, or inurnment under a written authorization
described in subsection (a) unless the cemetery owner had actual notice
that the representation made under subsection (a) by the individual who
issued the written authorization was untrue.
(c) An action may not be brought against the owner of a cemetery
relating to the remains of a human that have been left in the possession
of the cemetery owner without permanent interment, entombment, or
inurnment for a period of three (3) years, unless the cemetery owner
has entered into a written contract for the care of the remains.
(d) If:
(1) the death of the decedent appears to have been the result of:
(A) murder (IC 35-42-1-1);
(B) voluntary manslaughter (IC 35-42-1-3); or
(C) another criminal act, if the death does not result from the
operation of a vehicle; and
(2) the coroner, in consultation with the law enforcement agency
investigating the death of the decedent, determines that there is a
reasonable suspicion that a person described in subsection (a)
committed the offense;
the person referred to in subdivision (2) may not authorize the
disposition of the decedent's body or cremated remains.
(e) The coroner, in consultation with the law enforcement agency
investigating the death of the decedent, shall inform the cemetery
owner of the determination referred to in subsection (d)(2).
adult child is surviving, any adult child who confirms in writing
that the other adult children have been notified, unless the
licensed funeral director or licensed funeral home receives a
written objection from another adult child.
(4) (5) The decedent's surviving parent. If the decedent is
survived by both parents, either parent has the authority unless the
licensed funeral director or licensed funeral home receives a
written objection from the other parent.
(5) (6) The individual in the next degree of kinship under
IC 29-1-2-1 to inherit the estate of the decedent. If more than one
(1) individual of the same degree survives, any person of that
degree has the authority unless the licensed funeral director or
licensed funeral home receives a written objection from one (1)
or more persons of the same degree.
(6) (7) In the case of an indigent or other individual whose final
disposition is the responsibility of the state or township, the
following:
(A) If none of the persons identified in subdivisions (1)
through (5) (6) is available:
(i) a public administrator, including a responsible township
trustee or the trustee's designee; or
(ii) the coroner.
(B) A state appointed guardian.
(b) If:
(1) the death of the decedent appears to have been the result of:
(A) murder (IC 35-42-1-1);
(B) voluntary manslaughter (IC 35-42-1-3); or
(C) another criminal act, if the death does not result from the
operation of a vehicle; and
(2) the coroner, in consultation with the law enforcement agency
investigating the death of the decedent, determines that there is a
reasonable suspicion that a person described in subsection (a)
committed the offense;
the person referred to in subdivision (2) may not authorize or designate
the manner, type, or selection of the final disposition and internment of
human remains.
(c) The coroner, in consultation with the law enforcement agency
investigating the death of the decedent, shall inform the cemetery
owner or crematory authority of the determination under subsection
(b)(2).
UPON PASSAGE]: Sec. 1. (a) The estate of a person dying intestate
shall descend and be distributed as provided in this section.
(b) Except as otherwise provided in subsection (c), the surviving
spouse shall receive the following share:
(1) One-half (1/2) of the net estate if the intestate is survived by
at least one (1) child or by the issue of at least one (1) deceased
child.
(2) Three-fourths (3/4) of the net estate, if there is no surviving
issue, but the intestate is survived by one (1) or both of the
intestate's parents.
(3) All of the net estate, if there is no surviving issue or parent.
(c) If the surviving spouse is a second or other subsequent spouse
who did not at any time have children by the decedent, and the
decedent left surviving the decedent a child or children or the
descendants of a child or children by a previous spouse, the surviving
second or subsequent childless spouse shall take only an amount equal
to twenty-five percent (25%) of the remainder of:
(1) the fair market value as of the date of death of the real
property of the deceased spouse; minus
(2) the value of the liens and encumbrances on the real property
of the deceased spouse.
The fee shall, at the decedent's death, vest at once in the decedent's
surviving child or children, or the descendants of the decedent's child
or children who may be dead. A second or subsequent childless spouse
described in this subsection shall, however, receive the same share of
the personal property of the decedent as is provided in subsection (b)
with respect to surviving spouses generally.
(d) The share of the net estate not distributable to the surviving
spouse, or the entire net estate if there is no surviving spouse, shall
descend and be distributed as follows:
(1) To the issue of the intestate, if they are all of the same degree
of kinship to the intestate, they shall take equally, or if of unequal
degree, then those of more remote degrees shall take by
representation.
(2) Except as provided in subsection (e), if there is a surviving
spouse but no surviving issue of the intestate, then to the
surviving parents of the intestate.
(3) Except as provided in subsection (e), if there is no surviving
spouse or issue of the intestate, then to the surviving parents,
brothers, and sisters, and the issue of deceased brothers and
sisters of the intestate. Each living parent of the intestate shall be
treated as of the same degree as a brother or sister and shall be
entitled to the same share as a brother or sister. However, the
share of each parent shall be not less than one-fourth (1/4) of the
decedent's net estate. Issue of deceased brothers and sisters shall
take by representation.
(4) If there is no surviving parent or brother or sister of the
intestate, then to the issue of brothers and sisters. If the
distributees described in this subdivision are all in the same
degree of kinship to the intestate, they shall take equally or, if of
unequal degree, then those of more remote degrees shall take by
representation.
(5) If there is no surviving issue or parent of the intestate or issue
of a parent, then to the surviving grandparents of the intestate
equally.
(6) If there is no surviving issue or parent or issue of a parent, or
grandparent of the intestate, then the estate of the decedent shall
be divided into that number of shares equal to the sum of:
(A) the number of brothers and sisters of the decedent's
parents surviving the decedent; plus
(B) the number of deceased brothers and sisters of the
decedent's parents leaving issue surviving both them and the
decedent;
and one (1) of the shares shall pass to each of the brothers and
sisters of the decedent's parents or their respective issue per
stirpes.
(7) If interests in real estate go to a husband and wife under this
subsection, the aggregate interests so descending shall be owned
by them as tenants by the entireties. Interests in personal property
so descending shall be owned as tenants in common.
(8) If there is no person mentioned in subdivisions (1) through
(7), then to the state.
(e) A parent may not receive an intestate share of the estate of the
parent's minor or adult child if (1) the parent was convicted of causing
the death of the other parent by:
(A) (1) murder (IC 35-42-1-1);
(B) (2) voluntary manslaughter (IC 35-42-1-3);
(C) (3) another criminal act, if the death does not result from the
operation of a vehicle; or
(D) (4) a crime in any other jurisdiction in which the elements of
the crime are substantially similar to the elements of a crime
listed in clauses (A) subdivisions (1) through (C); and (3).
(2) the victim of the crime is the other parent of the child.
If a parent is disqualified from receiving an intestate share under this
subsection, the estate of the deceased child shall be distributed as
though the parent had predeceased the child.
satisfy the survivor's allowance unless the sale is approved:
(1) in an agreement signed by all interested persons; or
(2) by court order following notice to all interested persons.
(e) An allowance under this section is not chargeable against the
distributive shares of either the surviving spouse or the children.
(f) For purposes of this section, the value of the real property
that is part of a decedent's estate must be determined as of the date
of the decedent's death.
possible after the elapse of one (1) month. If the personal representative
or the personal representative's agent fails to give notice to a known or
reasonably ascertainable creditor of the decedent under subsection (d)
within one (1) month after the first publication of notice under
subsection (a), the period during which the creditor may submit a claim
against the estate includes an additional period ending two (2) months
after the date notice is given to the creditor under subsection (d).
However, a claim filed under IC 29-1-14-1(a) more than nine (9)
months after the death of the decedent is barred.
(f) A schedule of creditors that received notice under subsection (d)
shall be delivered to the clerk of the court as soon as possible after
notice is given.
(g) The giving of notice to a creditor or the listing of a creditor on
the schedule delivered to the clerk of the court does not constitute an
admission by the personal representative that the creditor has an
allowable claim against the estate.
(h) If any person entitled to receive notice under this section is
under a legal disability, the notice may be served upon or waived by the
person's natural or legal guardian or by the person who has care and
custody of the person.
(i) The notice shall read substantially as follows:
waived.
(b) The notice required under subsection (a) shall read substantially
as follows:
court within three (3) months after the filing of the closing
statement, the estate is closed and the court does not have a duty
to audit or make an inquiry.
IF, AT ANY TIME BEFORE THE ESTATE IS CLOSED, YOU
HAVE REASON TO BELIEVE THAT THE ADMINISTRATION OF
THE ESTATE SHOULD BE SUPERVISED BY THE COURT, YOU
HAVE THE RIGHT TO PETITION THE COURT FOR SUPERVISED
ADMINISTRATION.
IF YOU DO NOT UNDERSTAND THIS NOTICE, YOU SHOULD
ASK YOUR ATTORNEY TO EXPLAIN IT TO YOU.
The personal representative's address is ____________, and
telephone number is ___________. The attorney for the personal
representative is _______________, whose address is
_______________ and telephone number is _________.
Dated at _____________, Indiana, this _____ day of
_______________, 20__.
CLERK OF THE _______________ COURT
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2009]: Sec. 6.5. (a) This section does not
apply to the removal of a personal representative under section 6
of this chapter.
(b) An heir may petition the court for the removal of a
corporate fiduciary appointed by the court as personal
representative if there has been a change in the control of the
corporate fiduciary and either of the following applies:
(1) The change in the control of the corporate fiduciary
occurred after the date of the execution of the decedent's will
but before the decedent's death.
(2) The change in the control of the corporate fiduciary
occurred after the corporate fiduciary was appointed and
during the administration of the decedent's estate.
(c) A petition described in subsection (b) must be filed:
(1) not later than thirty (30) days after an heir, a devisee, or
a legatee receives notice under IC 29-1-7-7(c) or
IC 29-1-7.5-1.5, in the case of a change of control described in
subsection (b)(1); or
(2) not later than a reasonable time after the change of
control, in the case of a change of control described in
subsection (b)(2).
(d) The court may remove the corporate fiduciary if the court
determines, after a hearing, that the removal is in the best interests
of all the beneficiaries of the will. The court may replace the
corporate fiduciary with another corporate fiduciary or an
individual.
(e) For purposes of this section, a change in control of a
corporate fiduciary occurs whenever a person or group of persons
acting in concert acquires the beneficial ownership of a total of at
least twenty-five percent (25%) of the outstanding voting stock of:
(1) a corporate fiduciary; or
(2) a corporation controlling a corporate fiduciary.
(f) The removal of a corporate fiduciary after letters are duly
issued does not invalidate official acts performed before the
removal.
(g) If a corporate fiduciary is replaced under this section, the
corporate fiduciary is entitled to receive reasonable compensation
for services rendered before the removal.
document executed by the declarant concerning any preferences
described in section 9 of this chapter. However, this section may
not be construed to invalidate a power of attorney executed under
IC 30-5-5 or an appointment of a health care representative under
IC 16-36-1 with respect to any power or duty belonging to the
attorney in fact or health care representative that is not related to
a preference described in section 9 of this chapter.
(b) A funeral trust established under IC 30-2-9 or IC 30-2-10 or
a contract entered into under IC 30-2-13 prevails over a
declaration that conflicts with the trust or contract.
Sec. 11. (a) A person who acts in good faith reliance on a
declaration is immune from liability to the same extent as if the
person had dealt directly with the declarant and the declarant had
been a competent and living person.
(b) A person who deals with a declaration may presume, in the
absence of actual knowledge to the contrary, that:
(1) the declaration was validly executed; and
(2) the declarant was competent at the time the declaration
was executed.
(c) The directions of a declarant expressed in a declaration are
binding as if the declarant were alive and competent.
Sec. 12. A declaration must be substantially in the form set forth
in section 13 of this chapter, but the declaration may include
additional, specific directions. The invalidity of any additional,
specific direction does not affect the validity of the declaration.
Sec. 13. The following is the funeral planning declaration form:
buried at _______________.
(B) _______________ Cremated. I direct that my cremated
remains be disposed of as follows:
________________________________________________
________________________________________________
(C) _______________ Entombed. I direct that my body be
entombed at _______________.
(D) _______________ I intentionally make no decision
concerning the disposition of my body, leaving the decision
to my designee (as named above).
(2) My arrangements shall be made as follows:
(A) I direct that funeral services be obtained from:
__________________________________________________
__________________________________________________
(B) I direct that the following ceremonial arrangements be
made:
__________________________________________________
__________________________________________________
(C) I direct the selection of a grave memorial that:
__________________________________________________
__________________________________________________
(D) I direct that the following merchandise and other
property be selected for the disposition of my remains, my
funeral or other ceremonial arrangements:
_________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
(E) __________________I direct that my designee (as
named above) make all arrangements concerning
ceremonies and other funeral services.
(3) In addition to the instructions listed above, I request the
following:
__________________________________________________
__________________________________________________
(4) If it is impossible to make an arrangement specified in
subdivisions (1) through (3) because:
(A) a funeral home or other service provider is out of
business, impossible to locate, or otherwise unable to
provide the specified service; or
(B) the specified arrangement is impossible, impractical, or
illegal;
of attorney executed by the decedent under IC 30-5-5-16.
(3) The decedent's surviving spouse.
(4) A surviving adult child of the decedent.
(5) A surviving parent of the decedent.
(6) An individual in the next degree of kinship under
IC 29-1-2-1 to inherit the estate of the decedent.
Sec. 18. A person in Indiana may rely on a declaration or
similar instrument that was executed in another state and that
complies with the requirements of this chapter to the extent that an
action requested by the declarant in the declaration or similar
instrument does not violate any federal or Indiana law or any
ordinance or regulation of a political subdivision.
Sec. 19. An action to contest the validity of any declaration
made under this chapter must be:
(1) brought in the same manner as an action to contest the
validity of a will under IC 29-1-7;
(2) filed in the circuit court of the county in which the
declarant's remains are located;
(3) expedited on the docket of the circuit court as a matter
requiring priority; and
(4) accompanied by a bond, cash deposit, or other surety
sufficient to guarantee that the hospital, nursing home,
funeral home, or other institution holding the declarant's
remains is compensated for the storage charges incurred
while the action is pending.
chapter; or
(2) sells or advertises prepaid services or merchandise or services
or merchandise (as defined in section 8 of this chapter) after the
entity's certificate of authority has:
(A) expired; or
(B) been rescinded, revoked, or suspended by the board;
commits a Class A misdemeanor. Each act committed in violation of
this subsection constitutes a separate offense.
(c) The following may maintain an action to enjoin an individual or
entity from continuing to violate this section:
(1) The board.
(2) The attorney general.
(3) The prosecuting attorney of a county in which a violation
occurs.
(d) A purchaser has a private right of action against a seller who
commits an uncured deceptive act.
(e) A trustee or escrow agent, acting as a fiduciary, that disburses
funds in a trust or escrow account established under this chapter
without verifying that the seller has delivered the services or
merchandise for which the funds were deposited through the use of
documentation required under rules adopted by the state board of
funeral and cemetery service established by IC 25-15-9-1 commits a
Class A infraction.
(f) A person who knowingly or intentionally uses or disburses
funds in a trust or escrow account established under this chapter
for purposes other than the purposes required under this chapter
commits a Class C felony.
legally is no longer the principal's spouse; or
(6) a physician familiar with the condition of the current attorney
in fact certifies in writing to the immediate successor attorney in
fact that the current attorney in fact is unable to transact a
significant part of the business required under the power of
attorney.
(b) Except as stated otherwise in the power of attorney, if the
replaced attorney in fact reappears or is subsequently able to transact
business, the successor attorney in fact shall remain as the attorney in
fact.
(c) Except as otherwise stated in the power of attorney, an attorney
in fact designated as a successor has the powers granted under the
power of attorney to the original attorney in fact.
(d) Unless a power of attorney provides a different method for
an attorney in fact's resignation, an attorney in fact may resign by
giving notice to the principal, and, if the principal is incapacitated:
(1) to:
(A) the principal's guardian, if a guardian has been
appointed for the principal; and
(B) a co-attorney in fact or successor attorney in fact; or
(2) if there is no person described in subdivision (1), to:
(A) the principal's care giver;
(B) another person reasonably believed by the attorney in
fact to have sufficient interest in the principal's welfare; or
(C) a governmental agency having authority to protect the
welfare of the principal.
principal's successors in interest for the attorney's fees and costs
paid as a result of the violation.
apply to the transfer.
(e) This chapter does not apply to beneficiary designations that
are subject to the following:
(1) IC 32-17-9 (for securities registered before July 1, 2009,
under the Indiana Uniform Act on Transfer on Death
Securities).
(2) IC 32-17-11 (for pay on death accounts established before
July 1, 2009).
(f) Subject to IC 9-17-3-9(h) and IC 9-31-2-30(h), this chapter
applies to a beneficiary designation for the transfer on death of a
motor vehicle or a watercraft.
Sec. 3. The following definitions apply throughout this chapter:
(1) "Beneficiary" means a person designated or entitled to
receive property because of another person's death under a
transfer on death transfer.
(2) "Beneficiary designation" means a written instrument
other than a will or trust that designates the beneficiary of a
transfer on death transfer.
(3) "Joint owners" refers to persons who hold property as
joint tenants with a right of survivorship. However, the term
does not include a husband and wife who hold property as
tenants by the entirety.
(4) "LDPS" means an abbreviation of lineal descendants per
stirpes, which may be used in a beneficiary designation to
designate a substitute beneficiary as provided in section 22 of
this chapter.
(5) "Owner" refers to a person or persons who have a right to
designate the beneficiary of a transfer on death transfer.
(6) "Ownership in beneficiary form" means holding property
under a registration in beneficiary form or other written
instrument that:
(A) names the owner of the property;
(B) directs ownership of the property to be transferred
upon the death of the owner to the designated beneficiary;
and
(C) designates the beneficiary.
(7) "Person" means an individual, a sole proprietorship, a
partnership, an association, a fiduciary, a trustee, a
corporation, a limited liability company, or any other business
entity.
(8) "Proof of death" means a death certificate or a record or
report that is prima facie proof or evidence of an individual's
death.
(9) "Property" means any present or future interest in real
property, intangible personal property (as defined in
IC 6-4.1-1-5), or tangible personal property (as defined in
IC 6-4.1-1-13). The term includes:
(A) a right to direct or receive payment of a debt;
(B) a right to direct or receive payment of money or other
benefits due under a contract, account agreement, deposit
agreement, employment contract, compensation plan,
pension plan, individual retirement plan, employee benefit
plan, or trust or by operation of law;
(C) a right to receive performance remaining due under a
contract;
(D) a right to receive payment under a promissory note or
a debt maintained in a written account record;
(E) rights under a certificated or uncertificated security;
(F) rights under an instrument evidencing ownership of
property issued by a governmental agency; and
(G) rights under a document of title (as defined in
IC 26-1-1-201).
(10) "Registration in beneficiary form" means titling of an
account record, certificate, or other written instrument that:
(A) provides evidence of ownership of property in the
name of the owner;
(B) directs ownership of the property to be transferred
upon the death of the owner to the designated beneficiary;
and
(C) designates the beneficiary.
(11) "Security" means a share, participation, or other interest
in property, in a business, or in an obligation of an enterprise
or other issuer. The term includes a certificated security, an
uncertificated security, and a security account.
(12) "Transfer on death deed" means a deed that conveys an
interest in real property to a grantee by beneficiary
designation.
(13) "Transfer on death transfer" refers to a transfer of
property that takes effect upon the death of the owner under
a beneficiary designation made under this chapter.
(14) "Transferring entity" means a person who:
(A) owes a debt or is obligated to pay money or benefits;
(B) renders contract performance;
(C) delivers or conveys property; or
(D) changes the record of ownership of property on the
books, records, and accounts of an enterprise or on a
certificate or document of title that evidences property
rights.
The term includes a governmental agency, business entity, or
transfer agent that issues certificates of ownership or title to
property and a person acting as a custodial agent for an
owner's property. However, the term does not include a
governmental office charged with endorsing, entering, or
recording the transfer of real property in the public records.
Sec. 4. (a) The following transfers of ownership are not
considered transfer on death transfers for purposes of this chapter:
(1) Transfers by rights of survivorship in property held as
joint tenants or tenants by the entirety.
(2) A transfer to a remainderman on the termination of a life
tenancy.
(3) An inter vivos or a testamentary transfer under a trust
established by an individual.
(4) A transfer made under the exercise or nonexercise of a
power of appointment.
(5) A transfer made on the death of a person who did not have
the right to designate the person's estate as the beneficiary of
the transfer.
(b) A beneficiary designation made under this chapter must do
the following:
(1) Designate the beneficiary of a transfer on death transfer.
(2) Make the transfer effective upon the death of the owner of
the property being transferred.
(3) Comply with this chapter, the conditions of any governing
instrument, and any other applicable law.
(c) For purposes of construing this chapter or a beneficiary
designation made under this chapter, the death of the last surviving
owner of property held by joint owners is considered the death of
the owner.
(d) Except as otherwise provided in this chapter, a transfer on
death direction is accomplished in a form substantially similar to
the following:
(1) Insert Name of the Owner or Owners.
(2) Insert "Transfer on death to" or "TOD" or "Pay on death
to" or "POD".
(3) Insert the Name of the Beneficiary or Beneficiaries.
(e) An owner may revoke or change a beneficiary designation at
any time before the owner's death.
Sec. 5. A transfer on death transfer:
(1) is effective with or without consideration;
(2) is not considered testamentary;
(3) is not subject to the requirements for a will or for
probating a will under IC 29-1; and
(4) may be subject to an agreement between the owner and a
transferring entity to carry out the owner's intent to transfer
the property under this chapter.
Sec. 6. For the purpose of discharging its duties under this
chapter, the authority of a transferring entity acting as agent for
an owner of property subject to a transfer on death transfer does
not cease at the death of the owner. The transferring entity shall
transfer the property to the designated beneficiary in accordance
with the beneficiary designation and this chapter.
Sec. 7. (a) If any of the following are required, an agreement
between the owner and the transferring entity is necessary to carry
out a transfer on death transfer, which may be made in accordance
with the rules, terms, and conditions set forth in the agreement:
(1) The submission to the transferring entity of a beneficiary
designation under a governing instrument.
(2) Registration by a transferring entity of a transfer on death
direction on any certificate or record evidencing ownership of
property.
(3) Consent of a contract obligor for a transfer of
performance due under the contract.
(4) Consent of a financial institution for a transfer of an
obligation of the financial institution.
(5) Consent of a transferring entity for a transfer of an
interest in the transferring entity.
(b) When subsection (a) applies, a transferring entity is not
required to accept an owner's request to assist the owner in
carrying out a transfer on death transfer.
(c) If a beneficiary designation, revocation, or change is subject
to acceptance by a transferring entity, the transferring entity's
acceptance of the beneficiary designation, revocation, or change
relates back to and is effective as of the time the request was
received by the transferring entity.
Sec. 8. (a) If a transferring entity accepts a beneficiary
designation or beneficiary assignment or registers property in
beneficiary form, the acceptance or registration constitutes the
agreement of the owner and the transferring entity that, subject to
this section, the owner's property will be transferred to and placed
in the name and control of the beneficiary in accordance with the
beneficiary designation or transfer on death direction, the
agreement between the parties, and this chapter.
(b) An agreement described in subsection (a) is subject to the
owner's power to revoke or change a beneficiary designation
before the owner's death.
(c) A transferring entity's duties under an agreement described
in subsection (a) are subject to the following:
(1) Receiving proof of the owner's death.
(2) Complying with the transferring entity's requirements for
proof that the beneficiary is entitled to receive the property.
Sec. 9. (a) Except as provided in subsection (c), a beneficiary
designation that satisfies the requirements of subsection (b):
(1) authorizes a transfer of property under this chapter;
(2) is effective on the death of the owner of the property; and
(3) transfers the right to receive the property to the
designated beneficiary who survives the death of the owner.
(b) A beneficiary designation is effective under subsection (a) if
the beneficiary designation is:
(1) executed; and
(2) delivered;
in proper form to the transferring entity before the death of the
owner.
(c) A transferring entity shall make a transfer described in
subsection (a)(3) unless there is clear and convincing evidence of
the owner's different intention at the time the beneficiary
designation was created.
Sec. 10. (a) A written assignment of a contract right that:
(1) assigns the right to receive any performance remaining
due under the contract to an assignee designated by the
owner; and
(2) expressly states that the assignment does not take effect
until the death of the owner;
transfers the right to receive performance due under the contract
to the designated assignee beneficiary if the assignment satisfies the
requirements of subsection (b).
(b) A written assignment described in subsection (a) is effective
upon the death of the owner if the assignment is:
(1) executed; and
(2) delivered;
in proper form to the contract obligor before the death of the
owner.
(c) A beneficiary assignment described in this section is not
required to be supported by consideration or delivered to the
assignee beneficiary.
(d) This section does not preclude other methods of assignment
that are permitted by law and have the effect of postponing the
enjoyment of the contract right until after the death of the owner.
Sec. 11. (a) A transfer on death deed transfers the interest
provided to the beneficiary if the transfer on death deed is:
(1) executed in proper form; 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
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 makes a transfer on death deed, the effect of the
conveyance 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.
Sec. 12. (a) A deed of gift, bill of sale, or other writing intended
to transfer an interest in tangible personal property is effective on
the death of the owner and transfers ownership to the designated
transferee beneficiary if the document:
(1) expressly creates ownership in beneficiary form;
(2) is in other respects sufficient to transfer the type of
property involved; and
(3) is executed by the owner and acknowledged before a
notary public or other person authorized to administer oaths.
(b) A beneficiary transfer document described in this section is
not required to be supported by consideration or delivered to the
transferee beneficiary.
(c) This section does not preclude other methods of transferring
ownership of tangible personal property that are permitted by law
and have the effect of postponing enjoyment of the property until
after the death of the owner.
Sec. 13. (a) A transferor of property, with or without
consideration, may execute a written instrument directly
transferring the property to a transferee to hold as owner in
beneficiary form.
(b) A transferee 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 to hold as owner
in beneficiary form is effective when the written instrument
perfecting the transfer becomes effective to make the transferee the
owner.
Sec. 14. (a) Property may be held or registered in beneficiary
form by including in the name in which the property is held or
registered a direction to transfer the property on the death of the
owner to a beneficiary designated by the owner.
(b) Property is registered in beneficiary form by showing on the
account record, security certificate, or instrument evidencing
ownership of the property:
(1) the name of the owner and, if applicable, the estate by
which two (2) or more joint owners hold the property; and
(2) an instruction substantially similar in form to "transfer on
death to (insert name of beneficiary)".
An instruction to "pay on death to (insert name of the
beneficiary)" and the use of the abbreviations "TOD" and "POD"
are also permitted by this section.
(c) Only a transferring entity or a person authorized by the
transferring entity may place a transfer on death direction
described by this section on an account record, a security
certificate, or an instrument evidencing ownership of property.
(d) A transfer on death direction described by this section is
effective on the death of the owner and transfers the owner's
interest in the property to the designated beneficiary if:
(1) the property is registered in beneficiary form before the
death of the owner; or
(2) the transfer on death direction is delivered in proper form
to the transferring entity before the owner's death.
(e) An account record, security certificate, or instrument
evidencing ownership of property that contains a transfer on death
direction written as part of the name in which the property is held
or registered is conclusive evidence, in the absence of fraud, duress,
undue influence, lack of capacity, or mistake, that the direction
was:
(1) regularly made by the owner;
(2) accepted by the transferring entity; and
(3) not revoked or changed before the owner's death.
Sec. 15. (a) Before the death of the owner, a beneficiary has no
rights in the property because of the beneficiary designation. The
signature or agreement of the beneficiary is not required for any
transaction relating to property transferred under this chapter. If
a lienholder takes action to enforce a lien, by foreclosure or
otherwise through a court proceeding, it is not necessary to join the
beneficiary as a party defendant in the action unless the
beneficiary has another interest in the real property that has
vested.
(b) On the death of one (1) of two (2) or more joint owners,
property with respect to which a beneficiary designation has been
made belongs to the surviving joint owner or owners. If at least two
(2) joint owners survive, the right of survivorship continues as
between the surviving owners.
(c) On the death of a tenant by the entireties, property with
respect to which a beneficiary designation has been made belongs
to the surviving tenant.
(d) On the death of the owner, property with respect to which
a beneficiary designation has been made passes by operation of law
to the beneficiary.
(e) If two (2) or more beneficiaries survive, there is no right of
survivorship among the beneficiaries when the death of a
beneficiary occurs after the death of the owner unless the
beneficiary designation expressly provides for survivorship among
the beneficiaries. Except as expressly provided otherwise, the
surviving beneficiaries hold their separate interest in the property
as tenants in common. The share of any beneficiary who dies after
the owner dies belongs to the deceased beneficiary's estate.
(f) If no beneficiary survives the owner, the property belongs to
the estate of the owner unless the beneficiary designation directs
the transfer to a substitute beneficiary in the manner required by
section 22 of this chapter.
Sec. 16. (a) A beneficiary designation may be revoked or
changed during the lifetime of the owner.
(b) A revocation or change of a beneficiary designation
involving property owned as tenants by the entirety must be made
with the agreement of both tenants for so long as both tenants are
alive. After an individual dies owning as a tenant by the entirety
property that is subject to a beneficiary designation, the
individual's surviving spouse may revoke or change the beneficiary
designation.
(c) A revocation or change of a beneficiary designation involving
property owned in a form of ownership (other than as tenants by
the entirety) that restricts conveyance of the interest unless another
person joins in the conveyance must be made with the agreement
of each living owner required to join in a conveyance.
subject to a beneficiary designation notwithstanding the fact that
the effect of the transaction may be to extinguish a beneficiary's
right to receive a transfer of the property at the death of the owner.
(c) The rights of a beneficiary to any part of property that is
subject to a beneficiary designation after the death of the owner
are determined under IC 29-3-8-6.5 if:
(1) a guardian or conservator takes possession of the
property;
(2) the guardian sells, transfers, encumbers, or consumes the
property during the protected person's lifetime; and
(3) the owner subsequently dies.
Sec. 18. If property subject to a beneficiary designation is lost,
destroyed, damaged, or involuntarily converted during the owner's
lifetime, the beneficiary succeeds to any right with respect to the
loss, destruction, damage, or involuntary conversion that the
owner would have had if the owner had survived. However, the
beneficiary has no interest in any payment or substitute property
received by the owner during the owner's lifetime.
Sec. 19. (a) A beneficiary of a transfer on death transfer takes
the owner's interest in the property at the death of the owner
subject to all conveyances, assignments, contracts, set offs, licenses,
easements, liens, and security interests made by the owner or to
which the owner was subject during the owner's lifetime.
(b) A beneficiary of a transfer on death transfer of an account
with a bank, savings and loan association, credit union, broker, or
mutual fund takes the owner's interest in the property at the death
of the owner subject to all requests for payment of money issued by
the owner before the owner's death, whether paid by the
transferring entity before or after the owner's death, or unpaid.
The beneficiary is liable to the payee of an unsatisfied request for
payment to the extent that the request represents an obligation that
was enforceable against the owner during the owner's lifetime.
(c) Each beneficiary's liability with respect to an unsatisfied
request for payment is limited to the same proportionate share of
the request for payment as the beneficiary's proportionate share
of the account under the beneficiary designation. Each beneficiary
has the right of contribution from the other beneficiaries with
respect to a request for payment that is satisfied after the owner's
death, to the extent that the request for payment would have been
enforceable by the payee during the owner's lifetime.
Sec. 20. An individual who is a beneficiary of a transfer on death
transfer is not entitled to a transfer unless the individual:
(1) survives the owner; and
(2) survives the owner by the time, if any, required by the
terms of the beneficiary designation.
Sec. 21. (a) A trustee of a trust may be a designated beneficiary
regardless of whether the trust is amendable, revocable,
irrevocable, funded, unfunded, or amended after the designation
is made.
(b) Unless a beneficiary designation provides otherwise, a trust
that is revoked or terminated before the death of the owner is
considered nonexistent at the owner's death.
(c) Unless a beneficiary designation provides otherwise, a legal
entity or trust that does not:
(1) exist; or
(2) come into existence effective as of the owner's death;
is considered nonexistent at the owner's death.
Sec. 22. (a) Notwithstanding sections 9 and 20 of this chapter, a
designated beneficiary's rights under this chapter are not
extinguished when the designated beneficiary does not survive the
owner if:
(1) subsection (b) applies in the case of a designated
beneficiary who is a lineal descendant of the owner; or
(2) subsection (d) applies in the case of a designated
beneficiary who is not a lineal descendant of the owner.
(b) If a designated beneficiary who is a lineal descendant of the
owner:
(1) is deceased at the time the beneficiary designation is made;
(2) does not survive the owner; or
(3) is treated as not surviving the owner;
the beneficiary's right to a transfer on death transfer belongs to the
beneficiary's lineal descendants per stirpes who survive the owner
unless the owner provides otherwise under subsection (c).
(c) An owner may execute a beneficiary designation to which
subsection (b) does not apply by:
(1) making the notation "No LDPS" after a beneficiary's
name; or
(2) including other words negating an intention to direct the
transfer to the lineal descendant substitutes of the
nonsurviving beneficiary.
(d) An owner may execute a beneficiary designation that
provides that the right to a transfer on death transfer belonging to
a beneficiary who is not a lineal descendant of the owner and does
not survive the owner belongs to the beneficiary's lineal
descendants per stirpes who survive the owner. An owner's intent
to direct the transfer to the nonsurviving beneficiary's lineal
descendants must be shown by either of the following on the
beneficiary designation after the name of the beneficiary:
(1) The words "and lineal descendants per stirpes".
(2) The notation "LDPS".
(e) When two (2) or more individuals receive a transfer on death
transfer as substitute beneficiaries under subsection (b) or (d), the
individuals are entitled to equal shares of the property if they are
of the same degree of kinship to the nonsurviving beneficiary. If the
substitute beneficiaries are of unequal degrees of kinship, an
individual of a more remote degree is entitled by representation to
the share that would otherwise belong to the individual's parent.
(f) If:
(1) a designated beneficiary of a transfer on death transfer
does not survive the owner;
(2) either subsection (b) or (d) applies; and
(3) no lineal descendant of the designated beneficiary survives
the owner;
the right to receive the property transferred belongs to the other
surviving beneficiaries. If no other beneficiary survives the owner,
the property belongs to the owner's estate.
Sec. 23. (a) If, after an owner makes a beneficiary designation,
the owner's marriage is dissolved or annulled, any provision of the
beneficiary designation in favor of the owner's former spouse is
revoked on the date the marriage is dissolved or annulled.
Revocation under this subsection is effective regardless of whether
the beneficiary designation refers to the owner's marital status.
The beneficiary designation is given effect as if the former spouse
had not survived the owner.
(b) Subsection (a) does not apply to a provision of a beneficiary
designation that:
(1) has been made irrevocable, or revocable only with the
spouse's consent;
(2) is made after the marriage is dissolved or annulled; or
(3) expressly states that the dissolution or annulment of the
marriage does not affect the designation of a spouse or a
relative of the spouse as a beneficiary.
(c) A provision of a beneficiary designation that is revoked
solely by subsection (a) is revived by the owner's remarriage to the
former spouse or by a nullification of the dissolution or annulment
of the marriage.
(d) This section does not apply to any employee benefit plan
governed by the Employee Retirement Income Security Act of
1974.
Sec. 24. (a) A beneficiary designation or a revocation of a
beneficiary designation that is procured by fraud, duress, undue
influence, or mistake or because the owner lacked capacity is void.
(b) A beneficiary designation made under this chapter is subject
to IC 29-1-2-12.1.
Sec. 25. (a) No law intended to protect a spouse or child from
disinheritance by the will of a testator applies to a transfer on
death transfer.
(b) A beneficiary designation designating the children of the
owner or children of any other person as a class and not by name
includes all children of the person regardless of whether the child
is born or adopted before or after the beneficiary designation is
made.
(c) Except as provided in subsection (d), a child of the owner
born or adopted after the owner makes a beneficiary designation
that names another child of the owner as the beneficiary is entitled
to receive a fractional share of the property that would otherwise
be transferred to the named beneficiary. The share of the property
to which each child of the owner is entitled to receive is expressed
as a fraction in which the numerator is one (1) and the
denominator is the total number of the owner's children.
(d) A beneficiary designation or a governing instrument may
provide that subsection (c) does not apply to an owner's beneficiary
designation. In addition, a transferring entity is not obligated to
apply subsection (c) to property registered in beneficiary form.
(e) If a beneficiary designation does not name any child of the
owner as the designated beneficiary with respect to a particular
property interest, a child of the owner born or adopted after the
owner makes the beneficiary designation is not entitled to any
share of the property interest subject to the designation.
Sec. 26. (a) If an agreement between the owner and a
transferring entity is required to carry out a transfer on death
transfer as described in section 7 of this chapter, a transferring
entity may not adopt rules for the making, execution, acceptance,
and revocation of a beneficiary designation that are inconsistent
with this chapter. A transferring entity may adopt the rules
imposed by subsection (b) in whole or in part by incorporation by
reference.
(b) Except as otherwise provided in a beneficiary designation,
a governing instrument, or any other applicable law, the following
rules apply to a beneficiary designation:
(1) A beneficiary designation or a request for registration of
property in beneficiary form must be made in writing, signed
by the owner, dated, and, in the case of a transfer on death
deed, compliant with all requirements for the recording of
deeds.
(2) A security that is not registered in the name of the owner
may be registered in beneficiary form on instructions given by
a broker or person delivering the security.
(3) A beneficiary designation may designate one (1) or more
primary beneficiaries and one (1) or more contingent
beneficiaries.
(4) On property registered in beneficiary form, a primary
beneficiary is the person shown immediately following the
transfer on death direction. Words indicating that the person
is a primary beneficiary are not required. The name of a
contingent beneficiary in the registration must have the words
"contingent beneficiary" or words of similar meaning to
indicate the contingent nature of the interest being
transferred.
(5) Multiple surviving beneficiaries share equally in the
property being transferred unless a different percentage or
fractional share is stated for each beneficiary. If a percentage
or fractional share is designated for multiple beneficiaries, the
surviving beneficiaries share in the proportion that their
designated shares bear to each other.
(6) A transfer of unequal shares to multiple beneficiaries for
property registered in beneficiary form may be expressed in
numerical form following the name of the beneficiary in the
registration.
(7) A transfer on death transfer of property also transfers any
interest, rent, royalties, earnings, dividends, or credits earned
or declared on the property but not paid or credited before
the owner's death.
(8) If a distribution by a transferring entity under a transfer
on death transfer results in fractional shares in a security or
other property that is not divisible, the transferring entity
may distribute the fractional shares in the name of all
beneficiaries as tenants in common or as the beneficiaries may
direct, or the transferring entity may sell the property that is
not divisible and distribute the proceeds to the beneficiaries
in the proportions to which they are entitled.
(9) On the death of the owner, the property, minus all
amounts and charges owed by the owner to the transferring
entity, belongs to the surviving beneficiaries and, in the case
of substitute beneficiaries permitted under section 22 of this
chapter, the lineal descendants of designated beneficiaries
who did not survive the owner are entitled to the property as
follows:
(A) If there are multiple primary beneficiaries and a
primary beneficiary does not survive the owner and does
not have a substitute under section 22 of this chapter, the
share of the nonsurviving beneficiary is allocated among
the surviving beneficiaries in the proportion that their
shares bear to each other.
(B) If there are no surviving primary beneficiaries and
there are no substitutes for the nonsurviving primary
beneficiaries under section 22 of this chapter, the property
belongs to the surviving contingent beneficiaries in equal
shares or according to the percentages or fractional shares
stated in the registration.
(C) If there are multiple contingent beneficiaries and a
contingent beneficiary does not survive the owner and does
not have a substitute under section 22 of this chapter, the
share of the nonsurviving contingent beneficiary is
allocated among the surviving contingent beneficiaries in
the proportion that their shares bear to each other.
(10) If a trustee designated as a beneficiary:
(A) does not survive the owner;
(B) resigns; or
(C) is unable or unwilling to execute the trust as trustee
and no successor trustee is appointed in the twelve (12)
months following the owner's death;
the transferring entity may make the distribution as if the
trust did not survive the owner.
(11) If a trustee is designated as a beneficiary and no trust
instrument or probated will creating an express trust is
presented to the transferring entity, the transferring entity
may make the distribution as if the trust did not survive the
owner.
(12) If the transferring entity is not presented evidence during
the twelve (12) months after the owner's death that there are
lineal descendants of a nonsurviving beneficiary for whom
LDPS distribution applies who survived the owner, the
transferring entity may make the transfer as if the
nonsurviving beneficiary's descendants also failed to survive
the owner.
(13) If a beneficiary cannot be located at the time the transfer
is made to located beneficiaries, the transferring entity shall
hold the missing beneficiary's share. If the missing
beneficiary's share is not claimed by the beneficiary or by the
beneficiary's personal representative or successor during the
twelve (12) months after the owner's death, the transferring
entity shall transfer the share as if the beneficiary did not
survive the owner.
(14) A transferring entity has no obligation to attempt to
locate a missing beneficiary, to pay interest on the share held
for a missing beneficiary, or to invest the share in any
different property.
(15) Cash, interest, rent, royalties, earnings, or dividends
payable to a missing beneficiary may be held by the
transferring entity at interest or reinvested by the
transferring entity in the account or in a dividend
reinvestment account associated with a security held for the
missing beneficiary.
(16) If a transferring entity is required to make a transfer on
death transfer to a minor or an incapacitated adult, the
transfer may be made under the Indiana Uniform Transfers
to Minors Act, the Indiana Uniform Custodial Trust Act, or
a similar law of another state.
(17) A written request for the execution of a transfer on death
transfer may be made by any beneficiary, a beneficiary's legal
representative or attorney in fact, or the owner's personal
representative.
(18) A transfer under a transfer on death deed occurs
automatically upon the owner's death subject to the
requirements of subdivision (20) and does not require a
request for the execution of the transfer.
(19) A written request for the execution of a transfer on death
transfer must be accompanied by the following:
(A) A certificate or instrument evidencing ownership of the
contract, account, security, or property.
(B) Proof of the deaths of the owner and any nonsurviving
beneficiary.
(C) An inheritance tax waiver from states that require it.
(D) In the case of a request by a legal representative, a
copy of the instrument creating the legal authority or a
certified copy of the court order appointing the legal
representative.
(E) Any other proof of the person's entitlement that the
transferring entity may require.
(20) On the death of an owner whose transfer on death deed
has been recorded, the beneficiary shall file an affidavit in the
office of the recorder of the county in which the real property
is located. The affidavit must contain the following:
(A) The legal description of the property.
(B) A certified copy of the death certificate certifying the
owner's death.
(C) The name and address of each designated beneficiary
who survives the owner or is in existence on the date of the
owner's death.
(D) The name of each designated beneficiary who has not
survived the owner's death or is not in existence on the
date of the owner's death.
(E) A cross-reference to the recorded transfer on death
deed.
(c) A beneficiary designation is presumed to be valid. A party
may rely on the presumption of validity unless the party has actual
knowledge that the beneficiary designation was not validly
executed. A person who acts in good faith reliance on a transfer on
death deed is immune from liability to the same extent as if the
person had dealt directly with the named owner and the named
owner had been competent and not incapacitated.
Sec. 27. (a) An owner who makes arrangements for a transfer
on death transfer under this chapter gives to the transferring entity
the protections provided in this section for executing the owner's
beneficiary designation.
(b) A transferring entity may execute a transfer on death
transfer with or without a written request for execution.
(c) A transferring entity may rely and act on:
(1) a certified or authenticated copy of a death certificate
issued by an official or an agency of the place where the death
occurred as showing the fact, place, date, and time of death
and the identity of the decedent; and
(2) a certified or authenticated copy of a report or record of
any governmental agency that a person is missing, detained,
dead, or alive, and the dates, circumstances, and places
disclosed by the record or report.
(d) A transferring entity has no duty to verify the information
contained within a written request for the execution of a
beneficiary designation. The transferring entity may rely and act
on a request made by a beneficiary or a beneficiary's attorney in
fact, guardian, conservator, or other agent.
(e) A transferring entity has no duty to:
(1) except as provided in subsection (g), give notice to any
person of the date, manner, and persons to whom a transfer
will be made under beneficiary designation;
(2) attempt to locate any beneficiary or lineal descendant
substitute;
(3) determine whether a nonsurviving beneficiary or
descendant had a lineal descendant who survived the owner;
(4) locate a trustee or custodian;
(5) obtain the appointment of a successor trustee or custodian;
(6) discover the existence of a trust instrument or will that
creates an express trust; or
(7) determine any fact or law that would:
(A) cause the beneficiary designation to be revoked in
whole or in part as to any person because of a change in
marital status or other reason; or
(B) cause a variation in the distribution provided in the
beneficiary designation.
(f) A transferring entity has no duty to withhold making a
transfer based on knowledge of any fact or claim adverse to the
transfer to be made unless before making the transfer the
transferring entity receives a written notice that:
(1) in manner, place, and time affords a reasonable
opportunity to act on the notice before making the transfer;
and
(2) does the following:
(A) Asserts a claim of beneficial interest in the transfer
adverse to the transfer to be made.
(B) Gives the name of the claimant and an address for
communications directed to the claimant.
(C) Identifies the deceased owner.
(D) States the nature of the claim as it affects the transfer.
(g) If a transferring entity receives a timely notice meeting the
requirements of subsection (f), the transferring entity may
discharge any duty to the claimant by sending a notice by certified
mail to the claimant at the address provided by the claimant's
notice of claim. The notice must advise the claimant that a transfer
to the claimant's asserted claim will be made at least forty-five (45)
days after the date of the mailing unless the transfer is restrained
by a court order. If the transferring entity mails the notice
described by this subsection to the claimant, the transferring entity
shall withhold making the transfer for at least forty-five (45) days
after the date of the mailing. Unless the transfer is restrained by
court order, the transferring entity may make the transfer at least
forty-five (45) days after the date of the mailing.
(h) Neither notice that does not comply with the requirements
of subsection (f) nor any other information shown to have been
available to a transferring entity, its transfer agent, or its
employees affects the transferring entity's right to the protections
provided by this chapter.
(i) A transferring entity is not responsible for the application or
use of property transferred to a fiduciary entitled to receive the
property.
(j) Notwithstanding the protections provided a transferring
entity by this chapter, a transferring entity may require parties
engaged in a dispute over the propriety of a transfer to:
(1) adjudicate their respective rights; or
(2) furnish an indemnity bond protecting the transferring
entity.
(k) A transfer by a transferring entity made in accordance with
this chapter and under the beneficiary designation in good faith
and reliance on information the transferring entity reasonably
believes to be accurate discharges the transferring entity from all
claims for the amounts paid and the property transferred.
(l) All protections provided by this chapter to a transferring
entity are in addition to the protections provided by any other
applicable Indiana law.
Sec. 28. (a) The protections provided to a transferring entity or
to a purchaser or lender for value by this chapter do not affect the
rights of beneficiaries or others involved in disputes that:
(1) are with parties other than a transferring entity or
purchaser or lender for value; and
(2) concern the ownership of property transferred under this
chapter.
(b) Unless the payment or transfer can no longer be challenged
because of adjudication, estoppel, or limitations, a transferee of
money or property under a transfer on death transfer that was
improperly distributed or paid is liable for:
(1) the return of the money or property, including income
earned on the money or property, to the transferring entity;
or
(2) the delivery of the money or property, including income
earned on the money or property, to the rightful transferee.
(c) If a transferee of money or property under a transfer on
death transfer that was improperly distributed or paid does not
have the property, the transferee is liable for an amount equal to
the sum of:
(1) the value of the property as of the date of the disposition;
and
(2) the income and gain that the transferee received from the
property and its proceeds.
(d) If a transferee of money or property under a transfer on
death transfer that was improperly distributed or paid encumbers
the property, the transferee shall satisfy the debt incurred in an
amount sufficient to release any security interest, lien, or other
encumbrance on the property.
(e) A purchaser for value of property or a lender who acquires
a security interest in the property from a beneficiary of a transfer
on death transfer:
(1) in good faith; or
(2) without actual knowledge that:
(A) the transfer was improper; or
(B) information in an affidavit provided under section
26(b)(20) of this chapter was not true;
takes the property free of any claims of or liability to the owner's
estate, creditors of the owner's estate, persons claiming rights as
beneficiaries of the transfer on death transfer, or heirs of the
owner's estate. A purchaser or lender for value has no duty to
verify sworn information relating to the transfer on death transfer.
(f) The protection provided by subsection (e) applies to
information that relates to the beneficiary's ownership interest in
the property and the beneficiary's right to sell, encumber, and
transfer good title to a purchaser or lender but does not relieve a
purchaser or lender from the notice provided by instruments of
record with respect to the property.
(g) A transfer on death transfer that is improper under section
22, 23, 24, or 25 of this chapter imposes no liability on the
transferring entity if the transfer is made in good faith. The
remedy of a rightful transferee must be obtained in an action
against the improper transferee.
Sec. 29. (a) This chapter does not limit the rights of an owner's
creditors against beneficiaries and other transferees that may be
available under any other applicable Indiana law.
(b) The liability of a beneficiary for creditor claims and
statutory allowances is determined under IC 32-17-13.
Sec. 30. Except as otherwise provided by law, a transfer on
death transfer and the obligation of a transferring entity to execute
the transfer on death transfer that are subject to this chapter
under section 2(b) of this chapter remain subject to this chapter
notwithstanding a change in the:
(1) beneficiary designation;
(2) residency of the owner;
(3) residency or place of business of the transferring entity; or
(4) location of the property.
Sec. 31. (a) The probate court shall hear and determine
questions and issue appropriate orders concerning the
determination of the beneficiary who is entitled to receive a
transfer on death transfer and the proper share of each
beneficiary.
(b) The probate court shall hear and determine questions and
issue appropriate orders concerning any action to:
(1) obtain the distribution of any money or property from a
transferring entity; or
(2) with respect to money or property that was improperly
distributed to any person, obtain the return of:
(A) any money or property and income earned on the
money or property; or
(B) an amount equal to the sum of the value of the money
or property plus income and gain realized from the money
or property.
Sec. 32. (a) Except for transfer on death deeds, a beneficiary
designation that purports to have been made and is valid under:
(1) the Uniform Probate Code as enacted by another state;
(2) the Uniform TOD Security Registration Law as enacted by
another state; or
(3) a similar law of another state;
is governed by the law of that state.
(b) A transfer on death transfer subject to a law described in
subsection (a) may be executed and enforced in Indiana.
(c) Except for transfer on death deeds, the meaning and legal
effect of a transfer on death transfer is determined by the law of
the state selected in a governing instrument or beneficiary
designation.
may maintain an action against the wrongdoer to recover all damages
resulting before the date of death from those injuries that the decedent
would have been entitled to recover had the decedent lived. The
damages:
(1) inure to the exclusive benefit of the decedent's estate; and
(2) are subject to IC 6-4.1.
commit an offense under IC 35-45-13.
(10) Any equipment, used or intended for use in preparing,
photographing, recording, videotaping, digitizing, printing,
copying, or disseminating matter in violation of IC 35-42-4-4.
including computer equipment and cellular telephones, used for
or intended for use in preparing, photographing, recording,
videotaping, digitizing, printing, copying, or disseminating matter
in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or sold in
violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5,
tobacco products that a person attempts to sell in violation of
IC 24-3-5, and other personal property owned and used by a
person to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting or
forgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of an
offense specified in IC 25-26-14-26(b) or IC 35-43-10, the
following real or personal property:
(A) Property used or intended to be used to commit, facilitate,
or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to the
gross proceeds that the person obtained directly or indirectly
as a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle used by
a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 through
IC 9-30-5-5, if in the previous five (5) years the person has two
(2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to IC 9-30-5-1
through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person's driver's license is
suspended in violation of IC 9-24-19-2 through IC 9-24-19-4,
if in the previous five (5) years the person has two (2) or more
prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to IC 9-30-5-1
through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under this
subdivision, the court shall transmit an order to the bureau of
motor vehicles recommending that the bureau not permit a motor
vehicle to be registered in the name of the person whose motor
vehicle was seized until the person possesses a current driving
license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of an offense
specified in IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b),
or IC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to the
gross proceeds that a person obtains directly or indirectly
as a result of an offense specified in IC 23-14-48-9,
IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrier in
the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle knowingly
permitted the vehicle to be used to engage in conduct that subjects it to
seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless it
can be proven by a preponderance of the evidence that the owner of the
equipment knowingly permitted the equipment to be used to engage in
conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit any
of the following offenses shall be admitted into evidence in an action
under this chapter as prima facie evidence that the money, negotiable
instrument, security, or other thing of value is property that has been
used or was to have been used to facilitate the violation of a criminal
statute or is the proceeds of the violation of a criminal statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a
narcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as a
Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a Class
A felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can be
proven by a preponderance of the evidence that the owner of the
vehicle knowingly permitted the vehicle to be used to engage in
conduct that subjects it to seizure under subsection (a)(15).
period of limitation has expired.
(k) The following apply to the specified offenses:
(1) A prosecution for an offense under IC 30-2-9-7(b) (misuse
of funeral trust funds) is barred unless commenced within five
(5) years after the date of death of the settlor (as described in
IC 30-2-9).
(2) A prosecution for an offense under IC 30-2-10-9(b) (misuse
of funeral trust funds) is barred unless commenced within five
(5) years after the date of death of the settlor (as described in
IC 30-2-10).
(3) A prosecution for an offense under IC 30-2-13-38(f)
(misuse of funeral trust or escrow account funds) is barred
unless commenced within five (5) years after the date of death
of the purchaser (as defined in IC 30-2-13-9).
(l) A prosecution for an offense under IC 23-14-48-9 is barred
unless commenced within five (5) years after the earlier of the date
on which the state:
(1) first discovers evidence sufficient to charge the offender
with the offense; or
(2) could have discovered evidence sufficient to charge the
offender with the offense by the exercise of due diligence.