Were you recently informed that you are the Executor of the estate of a recently deceased loved one? If so, and you have never served as an Executor before, you are likely wondering where to start. Navigating the Illinois probate process can be complicated, particularly when you are also grieving the loss of a loved one. Although the probate process is never exactly the same for any two estates, there are some common steps in the process. Ideally, you should retain the assistance of an experienced Illinois estate planning attorney to help you probate the estate; however, it may also help to familiarize yourself with the process in the meantime.
What Is the Purpose of the Illinois Probate Process?
As the Executor of an estate, you need to understand the overall purpose of the probate process. When an individual dies, an estate is left behind that consists of all assets owned by the decedent at the time of death. The law has a vested interest in what happens to those assets. To ensure that all assets are accounted for and that creditors of the estate are paid, the law requires the estate to go through the legal process known as probate. Probate also ensures that any taxes owed to the state and/or federal government are paid before assets are transferred to the new owners.
Initial Duties and Decisions of the Executor
There are some important decisions you must make and steps you must take immediately after finding out you are the Executor of the estate. One of the first things you need to do is to locate an original copy of the decedent’s Last Will and Testament because you will need to submit a signed original to the probate court when you open the probate of the estate. You should also attempt to identify and locate as many major assets as possible as soon as possible and take steps to secure those assets. In addition, you should determine the approximate value of the estate so you can determine if the estate requires formal probate or whether an alternative to probate for small estates can be used. To do that, you will need to know which assets go through the probate process and which assets are considered non-probate assets. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Assets held in a retirement account
- Certain types of jointly held property
- Funds or real estate with a “payable on death (POD)” or “transfer on death (TOD)” designation.
As a general rule, if the probate assets do not exceed $100,000 in value, and do not include real property, an alternative to formal probate may be available.
If formal probate is required, you will need to file a petition to open probate in the Circuit Court in the county where the decedent was a resident at the time of death. You will also need to obtain date of death values for estate assets and notify creditors of the probate process. For unknown creditors, you will need to publish a notice of probate in a local newspaper. Those creditors may then files claims against the estate which you will need to review and approve or deny. Claims you approve must be paid out of available estate assets. This may require you to sell estate assets if sufficient liquid assets are not available to pay all approved claims. In the event that a Will contest is filed challenging the validity of the Will submitted for probate, you are required to defend that Will throughout the litigation that follows. Because all estates are potentially subject to federal gift and estate taxes, you must calculate those taxes, file the return, and pay any taxes due. The State of Illinois also imposes an estate tax which you will need to calculate, file, and pay, if applicable, out of estate assets. Finally, at the end of the probate process, you are responsible for legally transferring the remaining estate assets to the intended beneficiaries and/or heirs of the estate.
If you have additional questions or concerns regarding how to navigate the Illinois probate process, contact the experienced Illinois estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.