When a family member or loved ones dies, it is typically a time filled with heightened emotions and difficult decisions. The last thing most people want to think about are the practical and legal ramifications of their loved one’s death. If, however, you were named as the Executor of the estate in the decedent’s Last Will and Testament, or you have been elected to handle the probate of the estate if the decedent died intestate (without a Will), you will be forced to consider those aspects of the decedent’s death. If this is the first time you have administered an estate, you may be unsure of what is required. In addition, your emotional state may make it more likely you will make mistakes during the probate process. For these reasons, most Executor’s consult with an experienced estate planning attorney during the probate process. It may also help to know some of the most common probate mistakes and how to avoid making them yourself.
Common Probate Mistakes
- Failing to consider alternatives to formal probate. By far one of the most common mistakes people make when probating an estate is failing to consider if an alternative to formal probate can be used in lieu of formal probate. For small estates, this may be an option. In Illinois, for example, a small estate affidavit may be an option instead of formal probate. If the estate does qualify for an alternative to formal probate it can save the estate a considerable amount of money and save the beneficiaries a considerable amount of time.
- Failing to handle assets correctly. Most first-time Executors are not sure what steps need to be taken and when they need to be taken. Consequently, assets are sometimes not handled properly. As the Executor or Personal Representative of an estate, one of the first things you need to do is to secure all assets as soon as possible. This can mean different things depending on the asset in question. For financial accounts, you may just need to close the account, for example, whereas for real property you may need to physically lock up the property and arrange for its maintenance and upkeep. In addition, you will need to create an inventory of all estate assets and then determine which ones are probate assets and which ones are non-probate assets. All probate assets will also need a date of death value assigned to them.
- Failing to hire an estate planning attorney. If the estate qualifies for a small estate alternative to formal probate you may not need the assistance of an attorney; however, if the estate requires formal probate, it is usually a mistake to not retain the services of an experienced estate planning attorney. Hiring an experienced attorney will dramatically reduce the likelihood that you will make costly mistakes during the probate process.
- Failing to properly handle creditors. All potential creditors of the estate must receive notice of the probate of the estate. Known creditors can be notified personally; however, unknown creditors must receive notice via publication in a local newspaper. You must then keep the probate open for a statutory period of time to give creditors the opportunity to file a claim against the estate.
- Failing to calculate estate taxes correctly. All estates are potentially subject to federal gift and estate taxes. In addition, the State of Illinois also imposes a state level estate tax. Failing to properly calculate both federal and state estate taxes can be a costly mistake. Estate tax returns must also be filed on by the Executor on behalf of the estate. This is yet another reason to work with an estate planning attorney to prevent making a mistake that could dramatically diminish the value of the estate that is left for beneficiaries.
If you have additional questions or concerns regarding mistakes to avoid during the probate of an estate, contact the experienced Illinois estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.