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A widow trying to include her husband’s bank account and real estate in his estate despite the property being bequeathed to their son failed to find relief from the denial of her petition at the Court of Appeals of Indiana.
Gene and Ann Bricker had three children, including their son, Dennis Bricker.
In December 2019, Gene changed his last will and testament to modify a bank account, referred to as the “farm account,” to be payable to Dennis upon his death. Gene also changed the will and two transfer-on-death deeds in which he agreed to transfer and quitclaim Hancock County real estate to Dennis when he died.
Gene died in September 2021, and a month later Dennis executed two TOD affidavits with respect to the deeds.
In July 2022, Ann filed her notice of intention to take against the will and later petitioned to have the real estate and farm account included in the estate.
The Hancock Superior Court denied her petition and her motion to reconsider.
On appeal, Ann argued that the trial court erred in denying her petition because the transfers of the real estate and farm account were testamentary in nature and should be included in Gene’s estate for purposes of satisfying her spouse’s elective share of the estate. However, the appellate court disagreed and affirmed the trial court’s judgment.
The appeal focused on provisions of Indiana Code chapter 32-17-14, the Indiana Transfer on Death Property Act, and Indiana Code § 29-1-3-1, the Spousal Inheritance Statute. The former provides that a transfer on death transfer “is not considered testamentary.”
“TOD transfers are non-testamentary by definition, so, if the phrase ‘not considered testamentary’ does nothing more than declare them to be non-testamentary, it is mere surplusage,” Bradford wrote. “The phrase, however, does not define or otherwise address the inherent nature of a TOD transfer, but, rather, how it is ‘considered.’ In this context, the most logical interpretation of the phrase ‘not considered testamentary’ is that TOD transfers cannot be found to be ‘testamentary in nature’ for purposes of the (Spousal Inheritance Statute).
“Consequently, even if the TOD transfers would otherwise be subject to the rule mentioned in Weitzman, the trial court correctly denied Ann’s petition to have the Real Estate and Farm Account included in Gene’s estate,” he concluded, citing In re Est. of Weitzman, 724 N.E.2d 1120 (Ind. Ct. App. 2000).
The case is In re the Supervised Estate of Gene D. Bricker, Deceased Ann Bricker v. The Estate of Gene D. Bricker and Dennis Bricker, 23A-ES-3.
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