Ind. Elkhart Cnty. Local Rule LR20-PR00-601

601.1. Attorney Responsibilities

Whenever notice by publication and/or written notice by U.S. Mail is required either in writing or by

publication, the attorney shall prepare the notice and take such actions consistent with local practices to

ensure that such notice is published and/or served. In all respects, the notice shall comply with all

statutory requirements. The attorney shall be responsible to establish proper service of notice bringing the

subject matter of the notice before the Court.

601.2. Motions and Petitions to Accompany Notice

Where notice is required because a motion or petition has been filed with the Court, a copy of the petitions

or motions shall be served along with the written notice. If the notice is given by publication, the notice

shall adequately describe the subject matter of the petition or motion and describe how to obtain a copy of

the petition or motion without charge.

601.3. Service of Notice of Hearing

Unless waived by a person entitled to notice, a copy of the verified account must be served with written

notice of the hearing on final settlement of the estate or guardianship. If notice is given by publication, the

notice shall explain how to obtain a copy of the accounting without charge.

601.4. Notice of Opening of Estate

Notice of the opening of an estate shall be sent by First Class United States Mail to all distributes of the

estate and to all reasonably ascertainable creditors; however, the use of “certified mail, return receipt

requested,” to serve such notice is recommended.

601.5. Notice of Insolvent Estate

When a Petition is filed to determine that an estate is insolvent, notice of the hearing on the Petition along

with a copy of the Petition shall be served on all interested parties.

601.6. Electronic Filing

Any reference within the Local Probate Rules for Elkhart County to “written notice,” “notice in writing,”

or the like shall include notice delivered electronically. Notice requirements in the Probate Court must

also comply with the Local Rules for Electronic Filing.

601.7. Attorney and Personal Representative Fee Guidelines for Decedent’s Estates

A. Preamble. The Elkhart Circuit and Superior Courts have adopted these guidelines to achieve the

following objectives:

1. Establish uniformity in determining a fair and reasonable fee for supervised estates.

2. Provide a guideline to assist the Court and interested parties in determining fair and

reasonable fees.

3. Provide a guide to attorneys so they can discuss fees that may be reasonably incurred with

their clients at the onset of administration.

4. Assist the legal profession to arrive at a fair and reasonable fee for employment in estate

matters.

Every attorney and personal representative have an obligation to request a fee which is fair and

reasonable for the work performed, considering the Rules of Professional Conduct applicable to attorneys

admitted to practice law in the State of Indiana, and other relevant criteria. Except under extraordinary

circumstances, a request for fees should not exceed the fees authorized in these guidelines. In an

uncomplicated estate, fees should be less than those listed in these guidelines. Fees must always bear a

reasonable relationship to the services rendered.

B. Principles Applicable to Fee Determinations. Although these fee guidelines have been

promulgated by the Court for probate matters, it is important that attention be directed to the following

criteria when seeking an award of fees:

1. The time and labor required, the novelty, complexity, or difficulty of the questions involved,

the skill required to perform the services properly, including a determination as to how much of

the attorney’s time was devoted to ministerial functions.

2. The nature and extent of the responsibilities assumed by the attorney and the results

obtained, including the considerations of the identity of the personal representative and the

character of the probate and non-probate transferred assets.

3. The sufficiency of assets properly available to pay for legal services, and whether the

attorney’s duties are expanded by the existence of non-probate assets because of their inclusion

for tax purposes.

4. The timeliness with which the necessary services are performed consistent with statutory

requirements, Local Civil Rules of the Elkhart Circuit and Superior Court, Indiana Trial Rules,

and applicable Rules of Professional Conduct; and

5. Attorneys shall discuss their fees and the fees of the Personal Representative at the time they

are retained in all probate matters.

C. Attorney Fee Guidelines - General Administration:

1. Gross estate services are considered to normally include: probating the Will, opening of the

estate, qualifying the personal representative, preparing and filing the Inventory, paying claims,

collecting assets, preparing and filing non-extraordinary petitions, preparing and filing of

Fiduciary Income Tax Return, preparing and filling all tax returns and schedules, obtaining

Court Orders thereon, paying taxes, preparing and filing the Final Report, obtaining an Order

approving same, distributing assets, obtaining discharge of the Personal Representative, and

serving all notices on interested parties throughout the proceedings. This list shall not be

considered exclusive.

2. Gross Estate Services-Minimum Fee of five hundred dollars ($500.00) Plus:

3. Up to One hundred thousand dollars ($100,000.) Not to exceed six percent (6%)

4. Next One hundred thousand dollars ($100,000.) Not to exceed four percent (4%)

5. Next One hundred thousand dollars ($100,000.) Not to exceed three percent (3%)

6. Next One hundred thousand dollars ($100,000.) Not to exceed two percent (2%)

7. Over four hundred thousand dollars ($400,000.) Not to exceed one percent (1%)

8. Miscellaneous-Extraordinary Services:

a. Sale of Real Estate fees shall be based upon a reasonable hourly rate.

b. Federal Estate Tax Returns: Fees for Federal Estate Tax Returns are allowed only if a

return is required because of non-administered property and shall be based only on assets

not listed on the Indiana Inheritance Tax Schedule. A base fee of seven hundred and fifty

dollars ($750.00) or one percent (1%) is allowed for the first One hundred thousand dollars

($100,000.) Of the non-administered assets of the gross estate as determined for Federal

Estate Tax purposes plus: three-fourths (¾) of one percent (1%) of the next one hundred and

fifty thousand dollars ($150,000) of non-administered assets of the gross estate, plus one half

(½) of one percent (1%) on all non-administered assets of the gross estate more than two

hundred and fifty thousand dollars ($250.000.)

c. Other than as provided above, fees shall be based upon a reasonable hourly rate.

d. Attorney’s expertise in probate matters will be considered by the Court in determining the

applicable reasonable hourly rate.

D. Attorney Fee Guidelines - Wrongful Death Administration: The Court recognizes that in most

instances a retainer or contingent fee agreement is an appropriate method by which legal services can be

provided in wrongful death claims. Accordingly, fees shall be allowed under those agreements if, at the

time of settlement of the claim, it is shown to the Court’s satisfaction:

1. The personal representative was, prior to entering into such an agreement, fully informed as

to all aspects of the arrangement.

2. The agreement is fair and reasonable; and

3. The fee sought is fair and reasonable.

E. Extraordinary Fee Requests.

1. Fee petitions requesting extraordinary fees must set forth services rendered with specificity.

Extraordinary service may include sale of personal property, sale of real property, partial

distributions, will contest actions, contesting claims, adjusting tax matters, contested hearings,

petitions for instructions, heirship determinations, generating additional income for the estate,

etc.

2. All petitions under this section will be set for hearing, with notice to all interested parties. If

all interested parties sign a waiver and consent stating they have been advised that the additional

fee request exceeds the Court’s guidelines and that the services as detailed are extraordinary, the

Court may, in its discretion, determine whether a hearing is required.

3. A waiver and consent for allowing fees more than these Local Rule Guidelines shall not be

merely a pro forma waiver and consent, but must be in substantially the form as set forth Waiver

and Consent to Allow Excess Fees

F. Unsupervised Estates. The Court will not determine fees in an unsupervised administration.

G. Filing of Fee Petition. Before any fee is paid in a supervised estate, a petition for allowance of

the fee shall be filed and determined by the Court. A request for fees will be considered only under the

following circumstances:

1. The Final Report is ready to be filed, or

2. As necessary for purposes of an estate fiduciary income tax deduction, or

3. As necessary due to extraordinary circumstances.

H. Payment of Fees. Except where payment has been authorized under G.2 or G.3 above, fees are

payable one half (1/2) upon approval of fee petition and one half (1/2) upon approval of the Final Report.

I. Personal Representative Fees

1. Professional: The Court will approve Personal Representative fees at the applicable prevailing

rate, provided:

a. Those rates are on file with and approved by the Court.

b. The rate results in a reasonable fee considering all circumstances; and

c. A description of services rendered in support of a request for fees is filed.

2. Non-Professional: Fees for non-professional Personal Representative services may be allowed.

However, such fees shall not exceed one half (1/2) the fee allowed the attorney, provided:

a. The fee is reasonable considering all circumstances; and

b. A description of services rendered, including time spent with hourly rate in support of

the request is filed.

3. Attorney as Personal Representative: The Court discourages attorneys from assuming the dual

role of attorney and Personal Representative in the same estate. When the attorney does serve as

the Personal Representative, an additional amount not to exceed one-third (1/3) of the attorney

fee may be allowed, provided:

a. The fee is reasonable considering all circumstances; and

b. A description of services rendered including time spent with hourly rate in support of the

request is filed.

4. Fee Payments and Extraordinary Fee Requests: The Court will apply the same procedures to

the allowance and drawing of Personal Representative fees and to a Personal Representative’s

extraordinary fee request as it does to attorney fee requests, as outlined above.