The average person knows very little about the probate process and has likely never even needed to go to court for any type of legal matter. When a family member or close loved one passed away then, the prospect of probating the estate can sound overwhelming. Moreover, what most people have heard about probate is likely not flattering given what a cumbersome and time-consuming process probate can be. If you find yourself facing the potential need to probate an estate, you may wonder if all estates need to be probated in Illinois.
What Is Probate and Why Would You Want to Avoid It?
When someone dies, they leave behind assets owned by them at the time of their death. Eventually, those assets need to be legally transferred to the new owners. Probate is the name given to the legal process that facilitates those transfers as well as values the estate, notifies creditors so they can file claims, and ensures that any tax obligation due from the estate is paid. Avoiding probate is a common goal for several reasons. First, probate can be a lengthy process. Even a relatively modest estate will typically take at least five or six months to get through probate in Illinois because creditors have three months within which to file claims that must then be reviewed and approved or denied. In addition, probate can be expensive because everyone involved in the process is entitled to a fee for their service, including the Executor, accountants, and attorneys. Finally, probate is a very public process that many people would prefer to avoid.
Is Probate Always Necessary?
The good news is that even if the decedent did nothing to help his/her estate avoid probate, the estate might still be able to avoid formal probate in Illinois. Like most states, Illinois offers an alternative to formal probate for small estates that qualify. If the estate qualifies, an Illinois Small Estate Affidavit may be used to facilitate the transfer of estate assets in lieu of the need for formal probate. To qualify 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; and
- There is no dispute with respect to heirship or a will.
Typically, it is readily apparent when an estate qualifies to use the Small Estate Affidavit; however, there are situations where it is less than clear. For example, heirs may not know what assets are considered probate assets and which assets are non-probate assets. You should always check with an experienced probate attorney to be certain; however, some of the most common non-probate assets include:
- Assets held in a trust
- Assets held jointly with rights of survivorship
- Proceeds of a life insurance policy
- Assets held in an account designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Retirement or pension accounts
These non-probate assets are not included when calculating the total value of the estate for purposes of determining eligibility for use of the Small Estate Affidavit. Unfortunately, even if the estate’s probate assets are very modest though, formal probate will be required if the estate includes real property or any kind and/or value. The only important point to remember is that all of the heirs of the estate must work together in harmony to avoid formal probate. If there are questions regarding heirship or the validity of a Will, the estate cannot use the Small Estate Affidavit to transfer assets.
Contact Illinois Probate Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the Illinois probate process or you wish to determine if an estate can avoid formal probate in Illinois, contact the experienced Illinois probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.