You have probably listened to well-meaning friends and family members tell you how important it is for you to have at least a basic estate plan in place. If you are like over half of all Americans, you have yet to create a plan despite listening to their well-intentioned advice. Sometimes, the best way to impress upon someone the importance of doing something is to explain what will happen if they don’t do it. With that in mind, the Lincolnshire probate attorneys at Hedeker Law, Ltd. explains what happens to an estate if there is no Last Will and Testament.
Probate Process Basics
Probate is the legal process that is required following the death of an individual. Probate is intended to serve several inter-related functions, including:
- Authenticating the decedent’s Last Will and Testament, if one was executed prior to death
- Providing a method for contesting a Will
- Identifying, locating, and valuing estate assets
- Notifying creditors of the estate and allowing them to file claims against the estate
- Paying gift and estate taxes owed to state and/or federal government
- Transferring estate assets to beneficiaries and/or heirs of the estate
Testate vs. Intestate Estates
If a decedent left behind a valid Last Will and Testament the estate is referred to as a “testate” estate. If no Will was left behind, or if a Will is declared invalid, the estate is referred to as an “intestate” estate. The manner in which the estate is handled during the probate of the estate will depend on whether it is a testate or an intestate estate.
How Is the Probate Process Different for an Intestate Estate?
There are several important differences between the manner in which a testate estate and an intestate estate are handled during probate. The first of those relates to who oversees the probate process. When you execute a Will, one of the most important decisions you make in the Will is who to appoint as the Executor of your estate. The Executor of a testate estate is responsible for administering the estate and, therefore, oversees the entire probate process from start to finish. As such, the Executor makes important decisions that will impact your estate, such as which creditor claims to pay, which assets to sell (if necessary), and what taxes are owed and which assets to use to pay them. If you die intestate, any competent adult can petition to be the “Personal Representative” of your estate. The Personal Representative has essentially the same duties and responsibilities as an Executor but in an intestate estate administration. If no one volunteers to be your estate’s Personal Representative, the court will appoint someone. This means that a total stranger could end up controlling the probate of your estate.
The other obvious difference between a testate and an intestate estate is that in a testate estate, the terms of the decedent’s Will are used to determine how the estate assets are distributed whereas in an intestate estate, the state intestate succession laws dictate what happens to the decedent’s assets. Individual states have their own intestate succession laws; however, in all states only close family members will inherit estate assets unless none survive the decedent. For example, in the State of Illinois, if you are survived by a spouse and/or descendants, your estate assets will be distributed as follows:
- Survived by a spouse and descendants – the surviving spouse will inherit one-half of your probate estate and the children will inherit the remaining one-half, per stirpes.
- Survived by a spouse and no descendants – the surviving spouse will inherit your entire probate estate.
- Survived by descendants and no spouse – your descendants will inherit the entire probate estate, per stirpes.
This means that you have effectively given the state the power to decide what happens to your assets, including family heirlooms, sentimental items, assets you worked a lifetime to acquire. Worse still, some of those assets may have to be sold to facilitate the equal division of assets according to the state intestate succession laws. The way to prevent this from happening is to sit down with an estate planning attorney and get started on that estate plan by creating your Last Will and Testament.
Contact Lincolnshire Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding the Illinois intestate succession laws, or if you are ready to get started on your estate plan, contact the experienced probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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