The odds are very good that you will be required to oversee the probate of an estate at some point in your life. If that time is now because someone close to you recently passed away, and you have never before served as a Personal Representative, you are likely feeling a little intimidated by the prospect. In addition, if you are still grieving the loss of your loved one it can be difficult to focus on your job as Personal Representative. To help you get started and provide some direction, the probate attorneys at Hedeker Law, Ltd. have put together the following step by step guide.
What Is Probate and Who Oversees the Process?
Probate is the legal process that is typically required after someone dies. The primary purpose of probate is to inventory, value, and eventually transfer the decedent’s estate assets to the new owners. If the decedent executed a Last Will and Testament prior to death the individual named by the decedent to be the Executor of the estate is in charge of overseeing the probate of the estate. If the decedent dies intestate, or without a Will, the court must appoint an Administrator to oversee the probate of the estate. Typically, a spouse or other family member volunteers to be the Administrator in an intestate estate. The generic term “Personal Representative (PR)” is used to refer to either an Executor or an Administrator as the jobs are essentially the same.
Steps in the Probate Process
Although the probate process is never exactly the same for any two estates, there are some common steps. Those steps usually include:
- Action to take as soon after death as possible. Although you may be grieving the loss of a family member or close loved one, there are some steps that need to be taken as soon as possible after being notified of the decedent’s death and your role as PR. An original copy of the decedent’s Last Will and Testament must be located and certified copies of the decedent’s death certified ordered. The death certificate can be ordered from the Illinois Department of Public Health, assuming the death occurred in Illinois.
- Check for additional estate planning documents. Any additional estate planning documents should also be located and secured. To find these, check through the decedent’s files and contact the decedent’s estate planning attorney.
- Locate and secure assets. As soon after the decedent’s death as possible, you should start identifying and securing estate assets. This may be as simple as closing a bank account or as complex as shutting down a business.
- Retain a probate attorney. Probate is a legal process which is why most PRs retain the services of an experienced probate attorney to assist them with the probate of the estate.
- Categorize assets. Not all assets are required to go through the probate process. Therefore, you need to categorize all estate assets as probate or non-probate assets. Common examples of non-probate assets include:
- Trust assets
- Certain types of jointly held property
- Assets held in an account designated as “Payable on death (POD)” or “transfer on death (TOD)”
- Proceeds of a life insurance policy
- Some retirement type account assets
- Initiate probate. A decision must also be made regarding what type of probate is required – formal or an alternative to formal for small estates. Assuming that formal probate is required, it usually occurs in the county wherein the decedent was a resident at the time of his/her death. To open the probate of an estate you must obtain submit a certified copy of the death certificate, a signed, original copy of the decedent’s Will, and a petition to open probate.
- Notify creditors and review claims. Known creditors may be notified individually. Unknown creditors are notified via publication in a local newspaper. Creditors then have a statutory amount of time to file a claim against the estate. You must review all claims and approve or deny them and then pay approved claims out of available estate assets.
- Litigate any challenges. If a Will contest is filed, you, as the PR, are required to defend the Will submitted for probate throughout the litigation that will follow.
- Calculate and pay taxes. You must determine if any state or federal gift and estate taxes are due from the estate. All necessary tax returns must be filed and any tax debt owed must be paid out of estate assets.
- Distribute assets. To wrap up probate you must prepare any necessary legal documents to effectuate the transfer of the remaining estate assets to the intended beneficiaries.
Contact Probate Attorneys
Please download our FREE estate planning worksheet. If you have questions or concerns regarding the probate of an estate in the State of Illinois, contact the experienced probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.