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To be able to use a spread will of record I know there has to be a will -- are there other restrictions such as value of estate?

Bloomington, IN |

There is a will -- only one heir and all property is jointly owned by the deceased and the sole heir. If there is a value restriction, how does the joint ownership impact the value (this is not husband and wife but mother and son).

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Attorney answers 1


The process you refer to, "spreading a will of record," is also called "probate of will without adminstration." It means that you petition the judge to probate the will, meaning, declare that it is legally valid and enter it into the court's record of wills-- without appointing a personal representative or opening any estate for adminstration.

The procedure is indicated whenever there is a will which should be officially recognized but where the assets do not warrant court adminstration. That may be in the following typical situations: 1) where the value of assets is small enough to be transfered via the affidavit procedure for small estates set forth in Ind. Code 29-1-8-1, 2) where assets are adminstered via a trust but there is a "pourover will" which should be probated just in case assets outside the trust are later discovered, 3) where there are no known assets but there is a possibility that assets may later be discovered, and, the will provides for a different outcome than the law of intestate succession.

The important thing to understand is that there is a time limit to admit wills to probate, at present 3 years under Ind Code 29-1-7-15.1, and there is a limited time to contest wills as well. If property is needing adminstration three years after a date of death and the taker under a will is not the same taker as under intestacy, and the will has not been timely probated, then that person is going to be out of luck.

The procedure is often unknown to lawyers who do not practice extensively in the area of probate and estate adminstration. A good estates lawyer will be able to tell you if you need to do this or not.