Probate is not always required in Indiana. If the deceased person’s probate estate is worth $100,000 or less after subtracting liens, encumbrances, and funeral expenses, the heirs can collect assets with a sworn affidavit instead of opening a court case. Many assets also pass automatically to a named beneficiary or surviving co-owner regardless of the estate’s size. Formal probate becomes necessary mainly when the estate exceeds that threshold, when real estate sits in the deceased person’s name alone without a transfer-on-death deed or joint owner, or when there is a dispute the court has to resolve.
Assets That Skip Probate No Matter the Size of the Estate
Before worrying about thresholds and affidavits, look at how each asset is titled. Some assets never touch probate because they already carry a built-in transfer mechanism that activates at death:
- Payable-on-death bank accounts and CDs go directly to the named person.
- Transfer-on-death brokerage accounts, individual stocks, and real estate pass to the named beneficiary. For a transfer-on-death deed to work in Indiana, it must be recorded with the county recorder before the owner’s death.1Indiana General Assembly. Indiana Code 32-17-14-11 – Transfer on Death Deeds
- Property held in joint tenancy with right of survivorship becomes the surviving owner’s in full the moment the other owner dies.
- Assets inside a living trust pass under the trust document, with the successor trustee handling distribution outside of court.
- Life insurance proceeds and retirement accounts pay out to the beneficiaries named on the policy or plan.
One trap to check: if the deceased person divorced and never updated a payable-on-death or transfer-on-death designation that named the former spouse, Indiana law automatically revokes that designation and treats the ex-spouse as though they predeceased.2Indiana General Assembly. Indiana Code 32-17-14-23 – Effect of Dissolution or Annulment The revocation does not apply if the designation was irrevocable, was made after the divorce, or expressly says divorce does not affect it. Remarrying the former spouse revives the designation.
Add up what’s left after you set these assets aside. Only the remainder is the probate estate, and only the probate estate has to clear the $100,000 line.
The $100,000 Small Estate Affidavit
Indiana’s simplest workaround is the small estate affidavit. Under Indiana Code 29-1-8-1, a person entitled to receive property can present a sworn affidavit directly to a bank, brokerage, or anyone else holding the deceased person’s assets and collect what’s owed without ever opening a court case.3Indiana General Assembly. Indiana Code 29-1-8-1 – Small Estates; Payment Upon Presentation of Affidavit The gross probate estate, minus liens, encumbrances, and reasonable funeral expenses, must not exceed $100,000 for anyone who died after June 30, 2022.
Two rules govern how and when the affidavit can be used. You have to wait at least 45 days after the date of death before presenting it. And it only reaches personal property: bank accounts, investment accounts, vehicles, and the like. It does not transfer real estate.
A surviving spouse (or minor children if there is no surviving spouse) is also entitled to a $25,000 statutory family allowance that comes off the top of the estate before other distributions.4Indiana General Assembly. Indiana Code 29-1-4-1 – Surviving Spouse and Family Allowances An Indiana notary may charge no more than $10 per signature to notarize the affidavit.5Indiana General Assembly. Indiana Code 33-42-14-1 – Notary Public Fees
Transferring Real Estate Without Full Probate
Because the small estate affidavit does not cover real property, Indiana offers a separate tool for land and houses: a passage of title affidavit, sometimes called a devolution affidavit. Under Indiana Code 29-1-7-23, you record the affidavit with the recorder’s office in the county where the property sits, and it transfers title to the rightful heirs without a full probate case.6Indiana General Assembly. Indiana Code Title 29 Probate 29-1-7-23
The affidavit has to identify every distributee and explain how each person’s interest passed, whether through intestate succession or through a will that has already been admitted to probate. If title passes under a will, the affidavit must reference the court that admitted the will and the date of the order. The county auditor then endorses the affidavit and updates the tax records in the new owners’ names. This device is often overlooked and can save families thousands of dollars when real estate is the main asset at stake.
When Full Probate Can’t Be Avoided
Formal court administration is necessary when the probate estate exceeds $100,000 after liens, encumbrances, and funeral expenses. The most common trigger is real estate titled in the deceased person’s name alone without a transfer-on-death deed or a joint owner. No bank or title company will transfer that property on a death certificate alone, and the passage of title affidavit works only in situations where heirship is clear and uncontested. A court order is then the only route.
Probate is also required when the estate is insolvent (debts exceed assets), when beneficiaries dispute the validity of a will, or when no one can agree on who should serve as personal representative. In those situations, the court’s oversight is what ensures debts are paid in the order Indiana law requires and that assets reach the right people.7Indiana General Assembly. Indiana Code 29-1-14-9 – Classification of Claims; Preferences
If You Have to Probate: Cost, Timing, and the Two Tracks
A probate petition is filed in the county where the deceased person lived at the time of death.8Indiana General Assembly. Indiana Code 29-1-7-1 – Venue; Transfer of Proceedings The filing goes through the Indiana Electronic Filing System and costs $177, or $205 if the sheriff needs to serve process on parties who must be notified.9Indiana State Board of Accounts. 2025 Court Costs and Fees by Case Type Attorney fees and personal representative compensation come on top of that. Indiana doesn’t set executor pay at a fixed percentage; when the will doesn’t specify, the court approves whatever is “just and reasonable,” which in practice usually falls between 2% and 5% of the estate’s value depending on complexity and time spent.10Indiana General Assembly. Indiana Code Title 29 Probate 29-1-10-13
Expect the process to take at least six months. After the personal representative is appointed, they must publish notice to creditors, who then have three months from the first publication to file a claim.11Indiana General Assembly. Indiana Code Title 29 Probate 29-1-14-1 Creditors personally served after the first month of publication get two months from the service date.12Indiana General Assembly. Indiana Code 29-1-7-7 – Notice of Administration Any claim filed more than nine months after the date of death is permanently barred. The estate can’t be safely distributed until that window closes.
Indiana offers two tracks once probate opens:
Unsupervised Administration
Unsupervised is faster and cheaper. The personal representative can sell property, pay debts, file taxes, and distribute assets without running each step past the judge. The court grants unsupervised status when the will specifically authorizes it, or when all heirs or beneficiaries join the petition and consent.13Justia. Indiana Code Title 29 Article 1 Chapter 7.5 – Unsupervised Administration If the will authorizes it and the estate is solvent, consent from every beneficiary isn’t required. The tradeoff is less court protection: any interested person who thinks the representative is mismanaging the estate can petition to convert the case to supervised administration, and the court can do so on its own.
A bond generally isn’t required in unsupervised cases unless the will calls for one or the court decides creditors and beneficiaries need the protection.14Indiana General Assembly. Indiana Code 29-1-7.5-2.5 – Personal Representative’s Bond If the personal representative lives outside Indiana, the court has discretion to require a bond.
Supervised Administration
Supervised administration puts the court in the middle of every major decision. The representative needs court approval before selling property, paying certain debts, or distributing assets. Attorney fees run higher because more paperwork crosses the judge’s desk. This track is typical when beneficiaries don’t trust each other, when the estate is insolvent, or when the representative wants court approval as cover for difficult decisions.
What Happens Without a Will
Dying without a will doesn’t automatically mean probate; the same $100,000 threshold and non-probate transfer rules still apply. If the estate does need to be probated, the court distributes assets under Indiana’s intestate succession rules rather than the deceased person’s wishes. The surviving spouse’s share depends on who else survives:
- Spouse and children: the spouse receives half the net estate; the children split the other half.
- Spouse but no children: the spouse receives three-quarters if either of the deceased person’s parents is alive, or the entire estate if no parent survives.
- No spouse: everything goes to the children. If there are no children, the estate passes to parents, then siblings, then more distant relatives.
A special rule applies in second or later marriages where the surviving spouse never had children with the deceased person. The spouse then receives only 25% of the net value of the deceased person’s real property (after liens), though their share of personal property is unchanged. The deceased person’s children from the prior marriage inherit the rest of the real property immediately.
If you’re the one deciding whether to open a case, work through the questions in order: identify every asset with a beneficiary, co-owner, or trust and set it aside; add up what remains; check whether real estate sits in the deceased person’s name alone. If the remainder is under $100,000 and there’s no solely owned real estate, the affidavit route is likely enough. If real estate is the only reason you’re over the line, the passage of title affidavit may still keep you out of court. Anything beyond that, and the probate petition is probably unavoidable.