If you recently lost a family member or close loved one, you are undoubtedly trying to manage the emotional aftermath of your loved one’s death. At a time like this, the last thing most people want to focus on is legalities; however, someone must handle the legal and practical ramifications of your loved one’s death. Specifically, the decedent’s estate must be probated. If you are charged with handling the probate of the estate, the first thing you y need to do is decide which type of probate is required. To help you make that decision the Lincolnshire probate attorneys at Hedeker Law Ltd, explain the different types of probate that may be available to you.
What Is Probate?
When a person dies, he/she leaves behind an estate that consists of all assets owned by the decedent at the time of death. That estate must be accounted for and distributed. The legal process by which this occurs is known as probate. Probate actually serves several functions, including:
- Authenticating the decedent’s Last Will and Testament if applicable
- Identifying, locating and valuing estate assets
- Notifying creditors that the estate is being probated and affording them the right to file a claim against the estate
- Reviewing creditor claims against the estate
- Litigating any challenges to the Will
- Paying federal and/or state gift and estate taxes
- Transferring assets to the intended beneficiaries and/or heirs of the estate
If the decedent left behind a Will, the individual named as the Executor under the terms of that Will is who will oversee the probate of the estate. If the decedent died intestate, or without leaving behind a valid Will, any competent adult can volunteer to administer the estate.
Types of Probate
Although just about every estate must go through the probate process, the type of process required is not the same for every estate. Each individual state determines if an alternative to formal probate will be allowed for small estates. The State of Illinois does offer an alternative to formal probate.
Formal probate can be a lengthy and costly process that includes the following steps:
- Identifying, locating, securing, and valuing all estate assets
- Initiating the probate process by submitting the original Last Will and Testament (if applicable) and a petition to open probate in the county where the decedent was a resident at the time of death.
- Identifying, locating, and notifying legal heirs of the estate if the decedent died intestate.
- Notifying creditors that probate is underway.
- Reviewing creditor claims and approving or denying each claim.
- Calculating and paying any state and/or federal gift and estate taxes due.
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
Even a relatively small estate can take months, even years, to make it through the formal probate process. In addition, everyone involved in the probate of the estate, including the Executor, estate planning attorney, accountants, and appraisers are all entitled to a fee for their services. Those expenses are paid out of the estate assets, thereby diminishing the estate’s value.
In the State of Illinois, estates that qualify can use an alternative to formal probate known as a Small Estate Affidavit may be used if the decedent’s estate value is less than $100,000 and the estate meets several other criteria, such as:
- There are no unpaid creditors
- All estate assets are identified
- No one has challenged the Will
If the estate qualifies, you can fill out a Small Estate Affidavit that can then be used to distribute the estate assets. The affidavit does not have to be filed with a court nor approved by a judge. Once it is completed, it can be used to transfer estate assets. All you need to do is show the affidavit to the appropriate person/entity to transfer an asset. For example, if the decedent owned a safety deposit box you could simply complete the Small Estate Affidavit and take it to the bank to facilitate the transfer of the account assets to the beneficiary identified in the decedent’s Will or to the legal heirs of the estate if the decedent died intestate. As you can imagine, being able to use a Small Estate Affidavit saves a considerable amount of time and money along with providing beneficiaries of the estate with access t the estate assets much sooner than formal probate.
Contact the Lincolnshire Probate Attorneys
For more information, please download out FREE estate planning worksheet. If you have additional questions or concerns regarding the different types of probate, contact the experienced Lincolnshire probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.