There is a very good chance that you will be directly involved with the probate of an estate at some point in your life. Your involvement might be the result of being appointed the Executor of the estate of a recently deceased loved one or because you volunteer to be the Personal Representative of a loved one who recently died intestate, or without a Will. You could also find yourself part of the probate of an estate because you are a beneficiary, heir, or creditor of the estate. If you find yourself involved in the probate of an estate, you will undoubtedly want to know more about the probate process and how to navigate it. Even if you manage to avoid becoming a direct participant in the probate of someone else’s estate, you should still learn as much as possible about probate because your own estate will need to go through the process after your death. Whether you need to navigate the probate process as a participant or are creating your own estate plan, the following tips from a probate lawyer should be beneficial.
If You Are the Executor or Personal Representative (PR)…
An Executor is named by a Testator in a Last Will and Testament to oversee the probate of his/her estate. If a decedent dies intestate (without executing a Will prior to death), any competent adult can volunteer to be the PR of the estate. For the most part, the job of Executor/PR entails the same duties and responsibilities. Tips for the Executor/PR:
- Retain the services of an experienced estate planning attorney to ensure that you perform your duties and responsibilities correctly.
- Identify all estate assets as soon as possible after the decedent’s death and categorize them as probate or non-probate assets to determine the size and complexity of the probate estate.
- Keep detailed records of everything you do as Executor/PR
- Hire professionals when needed to assist. For example, if you need to appraise and/or sell real estate, don’t try to do this yourself. Work with a licensed real estate professional. Likewise, turn to a C.P.A. to prepare the estate’s gift and estate tax return.
- DO not forget that the State of Illinois levies an estate tax in addition to the gift and estate taxes imposed by the federal government.
- Do not release any estate assets until your estate planning attorney gives you the o.k. to do so as you could face personal liability if a mistake is made.
If You Are a Beneficiary or Heir…
The terms “beneficiary” and “heir” are often used interchangeably; however, they actually have different, but related, meanings. A beneficiary is someone who is named to receive a gift or benefit in the decedent’s Will or trust. An heir is someone who legally stands to inherit from the decedent under the state’s intestate succession laws in the event the decedent dies intestate. Tips for the beneficiary/heir:
- Consult with an attorney to be sure you understand what gifts/assets you stand to inherit from the estate.
- Being unhappy with your inheritance does not entitle you to challenge the Will. A Will contest must allege grounds on which the Will submitted to probate could be found invalid.
- Be patient. Unless the estate qualifies for an alternative to formal probate for small estates it will likely take several months at a minimum to complete the probate process.
- Be sure you understand any tax consequences of your inheritance. For example, some states (not Illinois) levy an inheritance tax on assets gifted to you.
If You Are a Creditor…
The Executor/PR is required to notify known creditors personally and unknown creditors through publication of the notice of probate in a local newspaper. Tips for a creditor:
- File your claim immediately. You (typically) only have six months to file a claim against an estate in Illinois.
- Appeal the denial if you believe the debt is worth it.
If You Are Creating Your Own Estate Plan…
Probate can be costly, both in terms of time and money, which is why many people include probate avoidance tools and strategies in their estate plan. The single most important tip for anyone creating an estate plan is to work with an experienced estate planning attorney to ensure that your estate plan does not include costly errors or omissions that could lead to litigation after you are gone.
Contact a Probate Lawyer
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding the probate process, contact an experienced Illinois probate lawyer at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.