Like most people, you likely have a vague notion of what the probate process entails and why it is required, but you probably don’t know much more than that. Why would you, after all, if you have never had reason to be directly involved in the probate of an estate? There is a very good chance, however, that you will be involved in the probate of an estate at some point in your life, making at least a basic understanding of probate essential. Moreover, you should learn as much as possible about probate so that you can incorporate that knowledge into your own estate plan. With all of that in mind, the Lincolnshire probate attorneys at Hedeker Law, Ltd. answer the top five probate questions.
- Why is probate necessary? Probate is the legal process that is typically required after an individual dies. Probate serves several important functions, including:
- Ensuring that all estate assets are identified, located, and valued
- Authenticating the decedent’s Will (if one was left behind)
- Litigating a challenge to the Will’s authenticity (if one is filed)
- Identifying and locating legal heirs of the estate
- Notifying creditors
- Paying approved creditor claims
- Paying state and federal gift and estate taxes
- Distributing estate assets to beneficiaries and/or heirs
- Can my estate avoid probate? Probating even a relatively simple estate can be a time consuming and expensive endeavor. Furthermore, probate assets are unavailable to the intended beneficiary until the end of the probate process. Not surprisingly, probate avoidance is a common estate planning goal. Probate avoidance strategies and tools can significantly diminish your estate’s exposure to probate. Because not all assets are required to go through probate, the key is to limit the probate assets you own at the time of your death. Assets held in a trust, for example, bypass the probate process altogether which is why many people use a trust as their primary distribution tool for their estate assets.
- Who oversees the probate process? One of the most important decisions you will make when executing your Will is who to appoint as your Executor. Your Executor has a wide variety of duties and responsibilities; however, his/her overall job is to oversee the administration of your estate. If you die intestate, or without a valid Will, any competent adult may volunteer to be the “Personal Representative” of your estate and oversee the probate process.
- What happens if I die without a Last Will and Testament? If a decedent left behind a Will, the estate is referred to as a “testate” estate and is distributed according to the terms and provisions of that Will. If the decedent failed to execute a Last Will and Testament prior to death, the estate is an “intestate estate” and the estate assets are distributed according to the state intestate succession laws. Typically, this means that only close family members and/or a spouse will receive anything from the estate. It also increases the likelihood of litigation during the probate process because without a Will to confirm what your wishes were, your loved ones may find themselves on opposite sides of the fence during litigation.
- How long does it take to probate an estate? Numerous factors impact the amount of time it takes to probate an estate; however, in the State of Illinois it will take at least six months and may take much longer. In Illinois, creditors have six months to file a claim against the estate, meaning the probate must remain open at least that long. As a general rule, the more valuable and/or complex the estate assets are, the longer it takes to probate an estate. If the estate is small enough, it may qualify for a small estate alternative to formal probate which will significantly reduce the amount of time it takes to probate the estate.
Contact Lincolnshire Probate Attorneys
Please feel free to download our FREE estate planning worksheet. If you have questions or concerns regarding probate in Illinois, contact the experienced Lincolnshire probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.