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Indiana Last Will and Testament

Written by our Legal Team

A Last Will and Testament (also simply called a “will”) is a legal document. It states your wishes for your property and minor children (if any) for after you pass away. It’s also where you name a personal representative to be in charge of settling your affairs.

The legal requirements for making a will in Indiana can be found in IC 29-1-5-1. See below for the basics.

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Making a Will in Indiana

Indiana Will Requirements

To make a valid will in Indiana, certain legal requirements must be met. There are requirements for both the person making the will (called a “testator”), and for the will itself.

Testator Requirements

Regarding testators, the law says:

Any person of sound mind who is eighteen (18) years of age or older, or who is younger and a member of the armed forces, or of the merchant marine of the United States, or its allies, may make a will. IC 29-1-5-1.

Sound mind generally means that you’re aware of your actions when creating the will. More specifically, it means that at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.

Will Requirements

Regarding the will itself, the standard requirements are set forth in IC 29-1-5-3.

The law says:

A will . . . must be executed by the signature of the testator and of at least two (2) witnesses. . . . The testator, in the presence of two (2) or more attesting witnesses, shall signify to the witnesses that the instrument is the testator’s will and either:
(A) sign the will;
(B) acknowledge the testator’s signature already made; or
(C) at the testator’s direction and in the testator’s presence have someone else sign the testator’s name.

The attesting witnesses must sign in the presence of the testator and each other.

Although there are various exceptions and special rules, these are the standard requirements for Indiana wills.

Do I need an attorney to make a will in Indiana?

No. An attorney is not required to make a will in Indiana. For the vast majority of people, an attorney will simply do the same things that a good will-making software does — ask you questions and then create documents for you based on your information and wishes. However, in certain situations it is a good idea seek legal advice from an attorney, like if you have a child with special needs, or if you have a high net worth (around $10 million) and are concerned about federal estate taxes. In these cases, an attorney can help you navigate special questions and create a proper plan.

What if I have an old will in place?

Indiana law handles old wills in two ways. First, if you have an old will in place, you can cancel it by creating a new one. A good will usually contains a statement that it revokes (cancels) any prior wills. Second, a will can be cancelled simply by physically destroying it. IC 29-1-5-6.

Do I need to file my will?

Under Indiana law, a will is filed with the court after the death of the testator. IC 29-1-7-3. So, after you pass away, your will should be filed in your local probate court by the person named to be your personal representative (also called an “executor” or “administrator”). This will begin the legal process known as “probate” through which your wishes are carried out under court supervision.

In the meantime, store your will in a safe place and make sure the right people know where to find it. Note: It is not a good idea to store a will in a safe deposit box, because accessing the safe deposit box can depend on getting court approval, and getting court approval can depend on what the will says!

Are there limitations on how I can leave my property?

You can generally leave your property however you want. However, if you are married, your spouse is entitled to some portion of your property (unless a formal agreement was made). Most married individuals leave everything to their spouse anyway, so this usually doesn’t present a problem.

Some wills leave everything in a bundle, while others break out specific gifts for specific people. Some leave everything in equal shares, and others say that everything should be sold and the proceeds distributed in specific percentages.

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