If your mother recently passed away, you are likely feeling overwhelmed with the emotional and practical aftermath of her passing. If you were named as the Executor of her Last Will and Testament, or you are the most likely person to handle the administration of her estate in the absence of a Will, you will undoubtedly want to avoid formal probate if possible. The only way to know with certainty that your mother’s estate can avoid formal probate is to consult with an experienced probate attorney. In the meantime, however, you may wish to learn more about ways in which avoiding probate in Waukegan, Illinois may be possible.
Probate Basics for the Beginner
Your mother left behind an estate that consists of all assets she owned and/or had an ownership interest in at the time of her death. This includes things such as her home, vehicle, and bank accounts along with investment accounts and household furnishings. If your mother’s estate was relatively small, and does not include complex assets, her estate may qualify for a small estate alternative to formal probate. If so, that will significantly shorten the amount of time it takes to probate her estate as well as reduce the costs associated with probating her estate.
If, however, your mother’s estate requires formal probate, it is in your best interest to retain the services of a probate attorney to help you for several reasons. The probate process requires a number of steps, many of which involve potentially complex legal concepts. Unless you have a legal background, it will be easy to overlook an important step or commit errors during the probate process. Those errors could be costly, both in terms of time and money.
Avoiding Probate in Waukegan – Probate vs Non-Probate Assets
Deciding whether or not an estate can avoid formal probate begins with evaluating the estate assets to determine if they are probate or non-probate assets. Only probate assets are required to go through any type of probate. Non-probate assets pass to the new owner outside of the probate process. Therefore, you need to categorize your mother’s estate assets and find out how big her actual probate estate is before deciding if formal probate is required. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Assets held in an account designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Certain retirement or pension accounts
Can You Use a Small Estate Affidavit?
Once you have separated the non-probate assets from the probate assets, you should consider whether the estate qualifies for an alternative to probate that is aimed at small estates. If the estate qualifies, you can use a Small Estate Affidavit to distribute estate assets without the need to go through probate. To be eligible for the use of the Small Estate Affidavit, the following conditions must be met:
- The value of the “probate assets” must be less than $100,000.00;
- The “probate assets” must not include real estate;
- No letters of office have been issued, nor is a petition for such letters contemplated;
- If there is a Will, it must be filed with the clerk of the probate court;
- If there is a Will on file with the court, then to the best of your knowledge, it must be a valid will and the decedent’s last Will;
- There is no dispute with respect to heirship or a Will.
- There are no outstanding unpaid claims or contested claims against the decedent (other than funeral expenses).
If your mother’s estate meets all of the guidelines mentioned above, you will be able to avoid formal probate and transfer her probate assets using the Small Estate Affidavit instead.
Contact Waukegan Probate Attorneys
For additional information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding probate in the State of Illinois, or you wish to consult with an attorney to determine if an estate qualifies for small estate administration, contact the experienced probate lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
- How Can I Terminate a Living Trust? - September 24, 2019
- Is an AB Trust Right for My Estate Plan? - September 12, 2019
- How Can I Include Philanthropy in My Estate Plan? - September 4, 2019
