Indiana General Assembly Recesses for 2021
Legislation That Passed the 2021 Indiana General Assembly - Continued
HEA 1056 – Recording Requirements
Author: Rep. Jerry Torr, R-Carmel
Senate Sponsor: Sen. Liz Brown, R-Fort Wayne
Bill summary
This bill amends the requirements for instruments and conveyances to be recorded. The bill adds instances in which an instrument is considered validly recorded for purposes of providing constructive notice. It also defines certain terms.
Why it matters
This bill is the fix to the second witness requirement to record instruments that arose from the interpretation of language change “or” to “and” in SEA 340 from the 2020 session. The bill also retroactively applies the language to all instruments recorded after July 1, 2020. This was a priority bill for the IMBA.
What happened
The bill passed the General Assembly and was signed by the governor.
HEA 1255 – Probate and Property Matters
Author: Rep. John Young, R-Franklin
Senate Sponsor: Sen. Aaron Freeman, R-Indianapolis
Bill summary
This bill has the following provisions:
Wills: The bill provides that a testator may execute a will in two or more counterparts. It specifies certain requirements for a will executed in two or more counterparts. It provides that a self-proving clause may be incorporated into or affixed to a will. It specifies certain requirements for self-proving clauses and wills. It specifies that certain photographic, video and audio evidence may be used as evidence with respect to the execution of a will. It exempts a will from the need for a recertification or a re-execution in certain instances. It specifies certain requirements concerning the execution of an electronic will. It allows an attorney or paralegal to supervise the execution of an electronic will. It exempts electronic wills from the need for recertification or re-execution in certain instances. It specifies that certain photographic, video and audio evidence may be used as evidence with respect to the execution of an electronic will. It also specifies certain requirements concerning the execution of a power of attorney.
Powers of Attorney: The bill allows a power of attorney to be executed in two or more counterparts. It specifies certain requirements for the execution of a power of attorney in two or more counterparts. It allows a self-proving clause to be incorporated into or affixed to a power of attorney. It specifies certain requirements for self-proving clauses incorporated into or affixed to a power of attorney. It specifies that certain photographic, video and audio evidence may be used as evidence with respect to the execution of a power of attorney. Electronic Power of Attorney: The bill provides that an electronically signed and notarized electronic power of attorney is valid if the electronic power of attorney complies with certain specified requirements. It also specifies certain requirements for attesting witnesses involved in the execution of a power of attorney or an electronic power of attorney. It allows a self-proving clause to be incorporated into or affixed to a power of attorney.
Trusts/Conveyances/Instruments: The bill specifies that certain photographic, video and audio evidence may be used as evidence with respect to the execution of an electronic power of attorney. It provides that certain persons are ineligible to sign certain trust instruments. It requires certain transfer on death conveyances to occur in the presence of a disinterested witness. It repeals certain provisions concerning mortgages, conveyances and other written instruments that are executed in a foreign country. It repeals certain provisions concerning the affixing of a private seal or ink scroll on certain conveyances involving land or interests in land. It specifies certain requirements concerning land conveyances performed by attorneys in fact. It requires certain notarial acts to accompany the recording of certain conveyances. It requires an English translation for certain instruments, acknowledgments and proofs when the original document is not in English. It repeals a provision concerning the recording of a conveyance, mortgage or other instrument in a county other than the county where the conveyance, mortgage or other instrument is required to be recorded. It repeals a provision concerning the recording of a conveyance that is acknowledged outside Indiana but within the United States. It specifies: (1) certain prerequisites; and (2) a certain form; for the recording of certain instruments. It repeals a provision concerning the receipt of an acknowledgment by a public officer. It specifies that an instrument’s acknowledgment or proof is incomplete when an instrument does not include an accompanying certificate. It provides that the transcript of an instrument that is recorded without a certificate cannot be read into or received as evidence. It also specifies requirements concerning electronic recording of certain instruments concerning real property.
County Recorders: The bill requires county recorders to implement specified functions concerning the: (1) acceptance; (2) receipt; (3) indexing; (4) storage; (5) archiving; and (6) transmittal; of electronically recorded instruments. It specifies certain requirements concerning the recording of a paper or tangible copy of an electronic instrument. It repeals a provision concerning the acknowledgment of certain instruments and the performance of certain notarial acts for a person serving in the armed forces, merchant marine or outside the United States in connection with a wartime activity. It repeals provisions concerning: (1) certain notarial acts; and (2) acknowledgments; and their respective uses as prima facie evidence. It repeals a provision concerning certain executed instruments and a failure to state the location of the instrument’s execution or any accompanying acknowledgment, if applicable. It provides that certain notarial acts are considered to have been performed in Indiana when certain specified criteria are met. It also requires a county recorder’s office to provide notice of office closures that last three or more days. It defines certain terms. It makes conforming amendments.
Why it matters
This bill comes from the Indiana Bar Association and makes various changes to wills, powers of attorney, trust, conveyances and county recorders. Notably, the bill sets forth new procedures for electronic execution of certain documents. The bill also places requirements on county government to accept and record electronic documents. County courthouses being closed during the pandemic presented challenges to the timely recording of documents.
What happened
The bill passed the General Assembly and was signed by the governor.
HEA 1314 – Recorded Discriminatory Covenants
Author: Rep. Jerry Torr, R-Carmel
Senate Sponsor: Sen. Scott Baldwin, R-Noblesville
Bill summary
This bill permits a person to file a statement or notice that a recorded discriminatory covenant is invalid and unenforceable.
Why it matters
The bill makes an important change in creating a process to permit a person to file a statement or notice that a recorded discriminatory covenant is invalid and unenforceable. The IMBA supported this change in law.
What happened
The bill passed the General Assembly and was signed by the governor.
Legislation That Died During the 2021 Indiana General Assembly
SB 49 – Unlawful Viewpoint Discrimination
Author: Sen. James Tomes, R-Wadesville
Bill summary
Provides that it is an unlawful, discriminatory practice for a financial institution or governmental entity to refuse to do business with, or otherwise discriminate against, a person because the person supports or is engaged in the lawful commerce of firearms, firearms accessories or ammunition. Provides an exemption with respect to certain practices engaged in by a financial institution for a legitimate business reason or to comply with the directive of a regulator. Provides for a civil cause of action for a person aggrieved by an unlawful discriminatory practice. Provides that the attorney general may bring a civil action in the name of the state against a person believed to be engaging in, or to have previously engaged in, an unlawful discriminatory practice. Provides that if the attorney general prevails in such an action, the attorney general shall recommend to the governor the discontinuation of state business relations with any person found to have engaged in an unlawful discriminatory practice.
Why it matters
SB 49 presents major issues for lenders. The bill essentially forces lenders to lend to certain businesses, unless they can prove legitimate business practices prevented them to, which is overly vague and unacceptable for the industry. The bill exposes lenders to significant liability for choosing not to lend to certain businesses, including attorney general enforcement and a civil cause of action. The IMBA opposed the bill.
What happened
The bill did not receive a hearing in the Senate.
SB 74 – Workplace Immunization Prohibition
Author: Sen. Dennis Kruse, R-Auburn
Bill summary
Prohibits an employer from requiring, as a condition of employment, an employee or prospective employee to receive any immunization if the immunization is medically contraindicated for the employee or if receiving the immunization is against the employee’s religious beliefs or conscience. Allows for a civil action against an employer for a violation.
Why it matters
There has been much discussion recently regarding whether businesses can lawfully require their employees to be vaccinated against COVID-19. The IMBA monitored this legislation, which received a committee hearing but did not move.
What happened
The bill was heard in the Senate Committee on Pensions and Labor but did not receive a vote.
SB 86 – Corporate and Financial Institutions Tax Rate
Author: Sen. Karen Tallian, D-Portage
Bill summary
Halts the phased changes to the corporate adjusted gross income tax rate at 5.25%. Halts the phased changes to the financial institutions tax rate at 6%.
Why it matters
The IMBA was strongly opposed to SB 86, as it would halt the continued gradual decrease in the Financial Institutions Tax rate that is on an eventual path to 4.9%.
What happened
The bill did not receive a hearing in the Senate.
See: Indiana State Legislative Update May 3, 2021 - Part 4
