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High court rules on estate issue

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The Indiana Supreme Court ruled on a matter of first impression today regarding the disposition of an entire estate during life or death.

In the Matter of the Guardianship of E.N., Adult,No. 88S01-0703-CV-121, deals with the issue of whether the guardianship estate planning statute authorizes dispositions of a protected person's entire estate, not just "excess" assets, as defined in the statute.

In this case, E.N. married and had two children - Shirley and Marvin. He executed a will in 1983 and another in 1992 naming his wife, Shirley, Marvin and their children as beneficiaries.

E.N.'s wife filed for divorce in 1997, and E.N. then lived with his two brothers. That year, and again in 1999, E.N. drafted two more wills, this time leaving his entire estate to his brothers and specifically disinheriting his children.

E.N. suffered from Alzheimer's disease, and the court named his daughter and son as co-guardians. In 1999, E.N. executed a new will, naming his children as sole beneficiaries of his estate; he testified he did not want his brothers to be beneficiaries.

In 2002, Shirley petitioned the guardianship court to implement an estate plan on E.N.'s behalf under Indiana Code 29-3-9-4, the guardianship estate planning statute. The plan was to move everything to a revocable trust with Marvin as trustee. E.N.'s brothers objected to the plan.

The guardianship court ruled in favor of Shirley, ruling E.N. was not competent to make the 1997 or 1999 wills, and it was reasonable E.N. would want his children to receive the bulk of the estate, with a small portion going to his brothers.

After E.N. died in 2004, his children petitioned the court to probate his 1999 will; his brothers objected, citing the guardianship court's ruling that will was invalid. Later, the children petitioned in probate court to probate the 1983 will.

The guardianship court terminated the guardianship "in all respects except as to those matters presently on appeal" in 2005. The Court of Appeals affirmed the guardianship court's approval of the estate plan.

The Supreme Court today reversed the guardianship court's October 2003 order approving the guardian's modified estate plan. For several reasons, Justice Theodore Boehm wrote that the Indiana legislature didn't authorize transfers of someone's entire estate during life or death. The statute in question allows a guardian to dispose of "excess" principal or income, but E.N.'s trust disposed of all of his assets. If the legislature had intended to authorize dispositions at death, it would have authorized wills, trusts, or other estate planning tools to allow it.

Indiana Code 29-1-5-8 provides that with the exception of revocation upon divorce, no written will or any part of it can be changed or revoked because of the condition of the testator. The estate plan effectively revoked E.N.'s valid will, wrote Justice Boehm.

"The legislature is certainly free to authorize guardians to dispose of all property at the protected person's death, but as of now it has not done so," he wrote.

Because the estate plan was not authorized by the guardianship estate planning statute, it must be disapproved, regardless of the validity of E.N.'s prior wills. The validity remains a matter for the probate court to consider under the will contest statutes. The case is remanded with instructions to close the guardianship by reason of E.N.'s death and the disposition of his estate remains a matter for probate court to decide.
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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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