CHAPTER 10. PERSONAL REPRESENTATIVES
IC 29-1-10
Chapter 10. Personal Representatives
IC 29-1-10-1
Letters testamentary; letters of general administration; persons to
whom granted; order; qualifications
Sec. 1. (a) Domiciliary letters testamentary or domiciliary letters
of general administration may be granted to one (1) or more of the
persons mentioned in this subsection, natural or corporate, who are
not disqualified, in the following order:
(1) To the executor or executors designated in a will that has
been admitted to probate.
(2) To a surviving spouse who is a devisee in a will that has
been admitted to probate.
(3) To a devisee in a will that has been admitted to probate.
(4) To the surviving spouse, or to the person or persons
nominated by the surviving spouse or to the surviving spouse
and the person or persons nominated by the surviving spouse.
(5) To:
(A) an heir;
(B) the person or persons nominated by an heir; or
(C) an heir and the person or persons nominated by an heir.
(6) If there is not a person listed in subdivisions (1) through (5),
then to any other qualified person.
(b) No person is qualified to serve as a domiciliary personal
representative who is:
(1) under eighteen (18) years of age;
(2) incapacitated unless the incapacity is caused only by:
(A) physical illness;
(B) physical impairment; or
(C) physical infirmity;
(3) a convicted felon, either under the laws of the United States
or of any state or territory of the United States;
(4) a resident corporation not authorized to act as a fiduciary in
this state; or
(5) a person whom the court finds unsuitable.
(c) A nonresident individual or corporate fiduciary may qualify
and serve as a joint personal representative with a resident personal
representative only by:
(1) filing with the court that has jurisdiction of the
administration of the decedent's estate a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property;
plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate;
and
(2) otherwise meeting the qualifications of subsection (b).
(d) A nonresident individual who otherwise qualifies under
subsection (b) may qualify to serve as a personal representative in
Indiana only by filing with the court that has jurisdiction of the
administration of the decedent's estate:
(1) notice in writing of the individual's acceptance of the
appointment as personal representative;
(2) notice of the appointment of a resident agent to accept
service of process, notices, and other documents; and
(3) a bond in an amount:
(A) not less than:
(i) the probable value of the estate's personal property;
plus
(ii) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(B) not greater than the probable gross value of the estate.
(e) If a personal representative becomes a nonresident of this
state, the representative remains qualified to serve only if the
representative files with the court that has jurisdiction of the
administration of the estate a bond in an amount:
(1) not less than:
(A) the probable value of the estate's personal property; plus
(B) the estimated rents and profits to be derived from the
property in the estate during the probate period; and
(2) not greater than the probable gross value of the estate.
(f) A nonresident individual who satisfies the conditions of
subsection (d) or (e) submits personally to the jurisdiction of the
court in any proceeding that relates to the estate of the decedent.
(Formerly: Acts 1953, c.112, s.1001; Acts 1973, P.L.287, SEC.5;
Acts 1975, P.L.289, SEC.2.) As amended by Acts 1982, P.L.173,
SEC.1; P.L.33-1989, SEC.39; P.L.118-1997, SEC.19.
IC 29-1-10-2
Letters; renouncing right
Sec. 2. Any person entitled to letters testamentary or to general
letters of administration may renounce his right thereto in writing,
which renunciation shall be filed with the clerk.
(Formerly: Acts 1953, c.112, s.1002.)
IC 29-1-10-3
Letters; issuance; conditions
Sec. 3. Letters testamentary, of administration, of administration
with the will annexed, de bonis non, and all other letters special or
otherwise, shall be issued to the person entitled to receive the same
when:
(a) Said person, if an individual, has taken and subscribed before
the clerk or any other officer authorized to administer oaths, an oath
or affirmation that he will faithfully discharge the duties of his trust
according to law and has given such bond as may be required and the
bond has been approved by the court.
(b) Some officer of the corporation, if the person is a corporation,
has taken and subscribed before the clerk or any other officer
authorized to administer oaths, an oath or affirmation that said bank
or trust company will faithfully discharge the duties of its trust
according to law, has filed an acceptance of the appointment, duly
executed and acknowledged by one (1) of its officers and, if a bond
is required to be filed by it, shall have filed such bond as may be
required and the bond shall have been approved by the court. The
oath and, if a bank or trust company, also the acceptance shall be
filed and recorded as a part of the proceedings of the estate.
(Formerly: Acts 1953, c.112, s.1003; Acts 1971, P.L.407, SEC.1.)
IC 29-1-10-4
Letters; evidence of authority
Sec. 4. Letters issued to a personal representative, attested by the
clerk, and under the seal of the court issuing them, shall be
conclusive evidence of the authority of the person to whom they are
issued until superseded or revoked, and shall extend to all the estate,
personal and real, of the decedent within the state. The record of
such letters and duly certified transcripts thereof, may be given in
evidence with like effect as the originals.
(Formerly: Acts 1953, c.112, s.1004.)
IC 29-1-10-5
Actions or proceedings; evidence of authority
Sec. 5. In any action or proceeding brought by the personal
representative in such representative capacity, it shall not be
necessary for him to make profert of his letters, nor shall his right to
sue as such personal representative be questioned, unless the
opposite party shall file a plea denying such right, with his affidavit
to the truth thereof thereunto attached, in which case a copy of the
letters issued to such personal representative, duly authenticated,
shall be all the evidence necessary to establish such right.
(Formerly: Acts 1953, c.112, s.1005.)
IC 29-1-10-6
Removal of personal representatives for reasons other than a
change in control of a corporate fiduciary
Sec. 6. (a) This section does not apply to the removal of a
corporate fiduciary after a change in control of the corporate
fiduciary.
(b) When the personal representative becomes incapacitated
(unless the incapacity is caused only by a physical illness, infirmity,
or impairment), disqualified, unsuitable or incapable of discharging
the representative's duties, has mismanaged the estate, failed to
perform any duty imposed by law or by any lawful order of the court,
or has ceased to be domiciled in Indiana, the court may remove the
representative in accordance with either of the following:
(1) The court on its own motion may, or on petition of any
person interested in the estate shall, order the representative to
appear and show cause why the representative should not be
removed. The order shall set forth in substance the alleged
grounds upon which such removal is based, the time and place
of the hearing, and may be served upon the personal
representative in the same manner as a notice is served under
this article.
(2) The court may without motion, petition or application, for
any such cause, in cases of emergency, remove such personal
representative instantly without notice or citation.
(c) The removal of a personal representative after letters are duly
issued does not invalidate official acts performed prior to removal.
(Formerly: Acts 1953, c.112, s.1006.) As amended by Acts 1982,
P.L.171, SEC.28; P.L.33-1989, SEC.40; P.L.143-2009, SEC.12.
IC 29-1-10-6.5
Removal of personal representative following a change in control
of a corporate fiduciary
Sec. 6.5. (a) This section does not apply to the removal of a
personal representative under section 6 of this chapter.
(b) An interested person 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 interested person
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 interested persons. 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.
As added by P.L.143-2009, SEC.13. Amended by P.L.6-2010, SEC.8.
IC 29-1-10-7
Successor representatives; appointment
Sec. 7. When a personal representative dies, is removed by the
court, or resigns and such resignation is accepted by the court, the
court may, and if he was the sole or last surviving personal
representative and administration is not completed, the court shall
appoint another personal representative in his place.
(Formerly: Acts 1953, c.112, s.1007.)
IC 29-1-10-8
Successor representatives; rights and powers
Sec. 8. When a successor personal representative or an
administrator with the will annexed is appointed, he shall have all the
rights and powers of his predecessor or of the executor designated in
the will, except that he shall not exercise powers given in the will
which by its terms are personal to the executor therein designated.
(Formerly: Acts 1953, c.112, s.1008.)
IC 29-1-10-9
Joint representatives; powers; survivor
Sec. 9. Every power exercisable by joint personal representative
may be exercised by the survivor of them when one is dead or by the
other when one appointment is terminated by order of the court,
unless the power is given in the will and its terms otherwise provide
as to the exercise of such power.
(Formerly: Acts 1953, c.112, s.1009.)
IC 29-1-10-10
Joint representatives; powers
Sec. 10. Where there are two (2) or more personal representatives,
the following powers can be exercised, except as otherwise provided
in section 11 of this chapter, only by all of them:
(a) the institution of a suit on behalf of the estate;
(b) the employment of an attorney;
(c) the carrying on the business of the deceased;
(d) the voting of corporate shares of the estate;
(e) the exercise of those powers given by the will which, by the
terms of the will, are to be exercised only by all of the personal
representatives, or by all the survivors of them.
All other powers can be exercised by any one of the personal
representatives, unless the will otherwise provides.
(Formerly: Acts 1953, c.112, s.1010.) As amended by Acts 1982,
P.L.171, SEC.29.
IC 29-1-10-11
Joint representatives; powers; voting shares of stock
Sec. 11. (a) Where powers possessed by two (2) or more personal
representatives are to be exercised by them jointly, the will of the
majority shall control the manner in which such power shall be
exercised unless the will otherwise provides.
Where the personal representatives, or a majority of them, cannot
agree, or where they are equally divided upon the manner in which
such power shall be exercised, other than in the voting of shares of
stock, the court shall, upon petition filed by any of such personal
representatives or by any party in interest, direct the manner in which
such power shall be exercised, and such power shall be exercised
only in accordance with such direction.
(b) Shares of stock held by personal representatives may be voted
by the personal representatives in such manner as the instrument or
order appointing such personal representatives may direct. In the
absence of such direction or the inability of the personal
representatives to act in accordance therewith, the following
provisions shall apply:
(1) Where shares of stock are held jointly by two (2) or more
personal representatives, such shares shall be voted in accordance
with the will of the majority.
(2) Where the personal representatives or a majority of them
cannot agree, or where they are equally divided upon the question of
voting such shares of stock, the court shall, upon petition filed by any
of such personal representatives or by any party in interest, direct the
voting of such shares as it may deem for the best interest of the
beneficiaries, and such shares shall be voted in accordance with such
direction.
(Formerly: Acts 1953, c.112, s.1011.)
IC 29-1-10-12
Voting corporate shares
Sec. 12. The personal representative may vote shares of corporate
stock in person, or by proxy, discretionary or otherwise and with or
without right of substitution and revocation.
(Formerly: Acts 1953, c.112, s.1012.)
IC 29-1-10-12.5
Protection of persons dealing in good faith
Sec. 12.5. A person who in good faith either assists a personal
representative or deals with him for value is protected as if the
personal representative properly exercised his power. The fact that
a person knowingly deals with a personal representative does not
alone require the person to inquire into the existence of a power or
the propriety of its exercise. No provision in any will or order of
court purporting to limit the power of a personal representative is
effective except as to persons with actual knowledge thereof. A
person is not bound to see to the proper application of estate assets
paid or delivered to a personal representative. The protection here
expressed extends to instances in which some procedural irregularity
or jurisdictional defect occurred in proceedings leading to the
issuance of letters, including a case in which the alleged decedent is
found to be alive. The protection here expressed is in addition to that
provided by comparable provisions of the laws relating to
commercial transactions and laws simplifying transfers of securities
by fiduciaries.
As added by Acts 1977, P.L.297, SEC.3.
IC 29-1-10-13
Compensation; attorney's services
Sec. 13. If a testator by will makes provision for the compensation
of his personal representative, that shall be taken as his full
compensation unless he files in the court a written instrument
renouncing all claims for the compensation provided by the will
before qualifying as personal representative. The personal
representative, when no compensation is provided in the will, or
when he renounces all claim to the compensation provided in the
will, shall be allowed such compensation for his services as the court
shall deem just and reasonable. Additional compensation may be
allowed for his services as attorney and for other services not
required of a personal representative. An attorney performing
services for the estate at the instance of the personal representative
shall have such compensation therefor out of the estate as the court
shall deem just and reasonable. Such compensation may be allowed
at the final settlement; but at any time during administration a
personal representative or his attorney may apply to the court for an
allowance upon the compensation of the personal representative and
upon attorney's fees.
(Formerly: Acts 1953, c.112, s.1013.)
IC 29-1-10-14
Actions on probate; expenses and attorney's fees
Sec. 14. When any person designated as executor in a will, or the
administrator with the will annexed, or if at any time there be no
such representative, then any devisee therein, defends it or
prosecutes any proceedings in good faith and with just cause for the
purpose of having it admitted to probate, whether successful or not,
he shall be allowed out of the estate his necessary expenses and
disbursements including reasonable attorney's fees in such
proceedings.
(Formerly: Acts 1953, c.112, s.1014.)
IC 29-1-10-15
Special administrator; appointment; appeal of order
Sec. 15. A special administrator may be appointed by the court if:
(a) from any cause delay is necessarily occasioned in granting
letters, or
(b) before the expiration of the time allowed by law for issuing
letters, any competent person shall file his affidavit with the
clerk that anyone is intermeddling with the estate or that there
is no one having authority to take care of the same, or
(c) if any person shall have died testate and objections to the
probate of his will shall have been filed as provided by law.
The appointment of a special administrator may be for a specified
time to perform duties respecting specific property, or to perform
particular acts as shall be stated in the order of appointment. The fact
that a person has been designated as executor in a decedent's will
shall not disqualify him from being appointed special administrator
of such decedent's estate or any portion thereof.
The special administrator shall make such reports as the court
shall direct, and shall account to the court upon the termination of his
authority. Otherwise, and except as the provisions of this article by
terms apply to general personal representatives, and except as
ordered by the court, the law and procedure relating to personal
representatives in this article shall apply to special administrators.
The order appointing a special administrator shall not be appealable.
(Formerly: Acts 1953, c.112, s.1015.) As amended by Acts 1982,
P.L.171, SEC.30.
IC 29-1-10-16
Pending will contest; administration of estate
Sec. 16. Prior to the adjudication of a pending will contest any
general personal representative or any special administrator, within
the limits of his authority, shall proceed to administer the estate
pursuant to the law respecting intestate estates, so far as the same
may be done consistent with the terms of any such will.
(Formerly: Acts 1953, c.112, s.1016.)
IC 29-1-10-17
Damages for wrongful death
Sec. 17. An administrator collecting damages for personal injury
resulting in the death of any decedent, may, at any time, file in the
court where he was appointed his final report with respect to such
proceeds, and the same may be approved by the court, and it shall not
be necessary to publish any notice of the final settlement of such
estate unless the same is ordered by the court. In the event that said
administrator was appointed for the sole purpose of collecting such
damages it shall not be necessary to publish any notice of the
issuance of letters of administration.
(Formerly: Acts 1953, c.112, s.1017.)
IC 29-1-10-18
Wrongful death; nonresident; appointment of administrator
Sec. 18. Any court having probate jurisdiction in the state of
Indiana may appoint an administrator for the estate of a nonresident
for the sole purpose of bringing an action to recover damages for the
wrongful death of such nonresident. The appointment may be made
in the county in which the death occurred; or in the county in which
the injury causing the death was received; or in the county in which
any party defendant to the suit resides. The appointment shall in no
way depend upon whether or not the decedent left assets.
(Formerly: Acts 1953, c.112, s.1018.)
IC 29-1-10-19
Termination of authority; validity of prior acts
Sec. 19. All acts of personal representatives whose authority shall
subsequently be terminated because an estate found to be intestate is
later found to be testate, or vice versa, because of a revocation of
letters, or for any other cause, which acts were lawful when
performed, according to the authority under which such personal
representative was acting, shall be valid insofar as concerns the
rights and liabilities of a purchaser, lessee, or encumbrancer, for
value in good faith or a personal representative who has acted in
good faith. No person delivering or transferring property to a
personal representative or to any other person by authority of the
letters issued to such personal representative or upon court order or
pursuant to a will under which such a personal representative is
acting, shall be held accountable by virtue of such acts performed
prior to such termination of authority if such acts were lawful in
accordance with the apparent authority of such letters, court order or
will.
(Formerly: Acts 1953, c.112, s.1019.)