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Probate Administration
Helping you get it done right
Probate is the process where an appointed representative handles the administration of an estate of a deceased person. In Illinois, the executor, administrator, or personal representative (the title depends on how the probate process is started) is responsible for identifying and collecting all of the property and assets, paying any financial obligations made against the estate, and distributing any remainder to the proper beneficiaries and heirs.
With proper estate planning, you can minimize probate expenses, or even avoid probate altogether. However, as in any legal matter, complications can arise requiring experienced and knowledgeable legal counsel. We are here to help!
Probate FAQ
What is Probate?
Probate is a term encompassing the court proceedings necessary when someone dies and they own property at the time of their death. There are two types of Probate Estates, (1) Testate, in which the deceased leaves a properly executed Last Will and Testament; and (2) Intestate, in which the deceased does not leave a will, and the deceased assets will pass to heirs through Illinois’ law of descent and distribution statute
How Long does Probate Take?
The probate process (in Illinois) involves collecting a deceased persons assets, determining creditors, paying final expenses, and distributing the assets of the deceased individual to their heirs and beneficiaries. The proceedings can take several months or even years to complete, depending on the size and complexity of the estate. Typically, the probate process takes nine to twelve months, however, this can be extended if the estate encounters unforeseen difficulties (i.e. disagreement among heir/legatees, a will or trust contest, a large number of claims being filed, or the need to file an Estate Tax Return).
Is an Attorney Required for Probate?
In Illinois, a lawyer is required to administer the probate estate unless the estate is valued at less than $100,000 and does not have any real property. If the estate does not require a lawyer, heirs and beneficiaries can use the Small Estate Affidavit, which does not require an attorney.
You should really hire an attorney, regardless of the value or holdings of an estate, if the estate has a lot of debt and is in danger of being sued by creditors, there are possible disputes among heirs, there is a business involved, or there are time-sensitive matters such as family members with special needs.
What are the steps in the probate process?
The basic process can be set forth as:
Filing of a Will: If the deceased person left a will, in Illinois, the person in possession of a will must file that will with the court clerk.
Filing a petition with the court: The next step in opening the probate “estate” is to then file a petition with the court. The petition will ask the court to appoint a representative to manage the estate.
Appointment of an executor or administrator: Once the court approves the petition, the judge will then appoint a representative to manage the estate. If the deceased individual left a will, the executor named in their last will & testament will most likely be appointed as representative. If there is no will, the court will appoint an administrator as representative (usually the next of kin or a close relative).
Notification of heirs and creditors: The estate representative will then notify any heirs and creditors of the deceased individual about the probate process. The representative is also responsible for publishing in a local newspaper a notice that the probate estate has been opened and where creditors can file their claims.
Inventory of assets: The representative will inventory all of the assets in the estate, such as property, bank accounts, investments, and personal property.
Payment of debts and taxes: The representative will pay any debts and taxes owed by the deceased individual from the assets in the estate. This might mean having to sell larger assets if there is significant debt in the estate.
Distribution of assets: Once all debts and taxes have been paid, the representative will distribute the remaining assets to the heirs or beneficiaries according to the deceased individual's will or Illinois law if no will exists.
Closing of the estate: After all assets have been distributed and all legal requirements have been met, the executor or administrator will ask the court to close the estate.
This only begins to touch on the many twists and turn probate estates often take.
Can I avoid Probate
Many people are concerned with the potential costs and time associated with taking an estate through probate. However, there are several ways to avoid probate through careful estate planning.
The most familiar to many people is the use of a Trust, where a person or couple put their property into a trust and then the trust distributes the property after their death.
In addition, any assets that are co-owned or have a pay-on-death beneficiary named will not be subject to probate.
It is important to work with an experienced probate attorney to ensure that the process is completed according to Illinois law. We have significant experience in this area, and would be happy to guide you through every step of the process. Give us a call today.