If you recently lost a family member, or other close loved one, the last thing you may wish to focus on right now is the legal ramifications of the decedent’s death. If, however, the decedent appointed you as Executor in his/her Last Will and Testament, you will need to focus on the probate of the estate. You may also need to focus on the probate process if your loved one died intestate (without a Will) and you appear to be the person elected to volunteer as the Administrator of the estate. For anyone who has never before acted as an Executor or Administrator, the Lincolnshire estate planning attorneys at Hedeker Law Ltd. offer an explanation of the Illinois probate process.
What Is Probate?
Probate is the legal process that is usually required after someone dies. The primary purpose of probate is to ensure that the decedent’s estate assets are properly accounted for, valued, and eventually transferred to the intended beneficiaries and/or heirs of the estate. Probate also allows for the authentication of the decedent’s Will and challenges to that Will if there are any as well as making sure that creditors of the estate are paid.
Testate vs. Intestate Estates
If the decedent left behind a valid Will, the estate is referred to as a “testate” estate. If the decedent did not leave behind a Will, the estate is referred to as an “intestate” estate. In a testate estate, the person named as Executor in the Will is responsible for overseeing the probate process. In addition, the terms of the Will dictate how the estate assets are distributed during probate. In an intestate estate, any competent adult may volunteer to be the Administrator. The Administrator is much the same as the Executor in terms of the duties and responsibilities he/she has during the probate process. In an intestate estate, the Illinois intestate succession laws will determine what happens to the decedent’s assets.
Probate vs. Non-Probate Assets
Not all assets are required to go through probate. Non-probate assets bypass probate altogether and can be distributed or transferred to the new owner immediately after the decedent’s death. Common examples of non-probate assets include:
- Assets held in a trust
- Jointly owned assets if held 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)”
Does the Estate Qualify for Small Estate Administration?
Not all estate must go through formal probate. Most states, including the State of Illinois, offer a small estate alternative for estates that qualify. In Illinois, if the estate assets are valued at less than $100,000, the estate may qualify to use a small estate affidavit in lieu of formal probate.
What Happens during Formal Probate?
If the estate requires formal probate, the process will begin by filing a petition to open probate in the county in which the decedent was a resident at the time of death. The original copy of the Will along with a certified copy of the death certificate must also be filed with the court. Shortly thereafter, creditors of the estate must be notified, either personally or via publication in a local newspaper. Creditors then have six months within which to file a claim against the estate. The Executor/Administrator must review all claims that are filed and either approve or reject the claims. If the estate lacks sufficient assets to pay all approved claims, including any taxes due, debts are paid according to priority. In the event that someone contests the validity of the Will filed with the court, that challenge must also be litigated and the Executor/Administrator is responsible for defending the Will. Only after any litigation has concluded, the time to file claims has passed, and all debts settled can any remaining assets be transferred to the beneficiaries designated in the Will and/or to the legal heirs under the Illinois intestate succession laws.
Given the complexity of the probate process, most Executors/Administrators retain the services of an experienced estate planning attorney to assist them throughout the probate of the estate.
Contact Lincolnshire Estate Planning Attorneys
Please feel free to download our FREE estate planning worksheet. If you have questions or concerns regarding the probate process in Illinois, contact the experienced Illinois estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.