If you have finally made the decision to get started on your estate plan, your first step will likely be to create and execute a Last Will and Testament. As such, you are probably spending a considerable amount of time thinking about who you wish to name as beneficiaries in your Will and what assets you plan to gift to which beneficiary. Of course, these decisions are important as they are at the heart of a Last Will and Testament; however, do not make the mistake so many other people make of glossing over the choice of Executor. All too often people simply appoint a spouse, parent, adult child, or even best friend as the Executor of their Will without giving the matter any thought. What you may not realize is that the right Executor can contribute significantly to an efficient and expeditious probate process whereas the wrong Executor can result in a time consuming and costly probate of your estate. Once you have a better understanding of the numerous and varied Executor duties and responsibilities you will likely make the right choice.
The Executor’s job begins the moment he/she is notified of the death of the Testator. If the Executor has an original copy of the Will he/she is required by law to present the Will to the appropriate court and initiate the probate process. At the same time, the Executor will ask the court to be officially appointed as the Personal Representative (PR) of the estate.
The Decedent’s Assets
The Executor must identify, locate and secure all the estate assets and then figure out which ones are probate assets. Estate assets include all real and personal property as well as all tangible and intangible assets. Because not all assets are required to go through the probate process, an Executor must figure out which assets are probate assets and which are considered non-probate assets. Common examples of non-probate assets include life insurance proceeds, certain types of jointly help property, and asses held in a trust. Once all probate assets have been identified and located the Executor must obtain a Date of Death (DoD) value for each asset. The court may also require the Executor to prepare an inventory of all estate assets along with a DoD value for each estate asset.
The Executor must also notify all beneficiaries and creditors of the estate that the probate process is underway. Known creditors are notified personally while unknown creditors must be notified by publishing notice of the probate in local newspapers. Creditors of the estate then have three months in which to file a claim against the estate. All claims filed against the estate must be reviewed by the Executor and approved or denied. Approved claims are paid out of estate assets. Creditors that are denied may appeal to the court. If insufficient liquid assets exist to pay approved claims the Executor must sell estate assets in order to raise the necessary funds.
In the event that a Will contest is filed, the Executor is responsible for defending the Will throughout the ensuing litigation. The entire probate process effectively comes to a halt while the Will contest is litigated because the outcome determines what happens next. If your Will is declared valid it will continue to be used to probate the estate. If your Will is declared invalid, the Illinois intestate succession laws will be used to probate the estate.
Taxes and Closing Probate
Before any assets can be distributed to beneficiaries or heirs of the estate, all federal and/or state gift and estate taxes must be paid. Therefore, the Executor is responsible for preparing and filing all necessary tax forms and paying any tax debt owed to the state or federal government. This may also require the sale of estate assets if sufficient liquid assets are not available. An error in the calculation of tax liabilities, or a failure to file on time, can be extremely detrimental to the estate’s value.
If you have additional questions or concerns regarding the different types of Wills, contact the experienced Illinois estate planning attorneys at Hedecker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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