At some point in your life, you will likely be directly involved in the probate of an estate. That may be because you were named as the Executor of the estate of a family member or loved one who recently passed away, or you might be the beneficiary of an estate. Even if you manage to avoid being involved in the probate process as an Executor or beneficiary, you still need at least a basic understanding of the probate process so that you can properly plan your own estate. Toward that end, the Waukegan probate attorneys at Hedeker Law Ltd. explain the Illinois probate process.
What Is Probate?
When an individual dies, that person leaves behind a legal estate consisting of all assets owned by the decedent at the time of death. This includes both real and personal property as well as both tangible and intangible assets. All estate assets must eventually be transferred to new owners. The transfer of assets, among other goals, is accomplished during the legal process known as probate. One of the benefits of executing a Last Will and Testament is the ability to appoint an Executor who will be in charge of overseeing the probate of your estate. In the absence of a Will, any competent adult may volunteer to be the Personal Representative and oversee the probate process. During probate, the Executor has numerous duties and responsibilities, including:
- Immediately after the Testator’s death. Often, an Executor is grieving the loss of a family member or close loved one; however, he/she must act quickly to prepare for the opening of probate. An original copy of the decedent’s Last Will and Testament must be located and certified copies of the decedent’s death certified ordered. Any additional estate planning documents should also be located and secured.
- Identifying and securing assets. As soon after the decedent’s death as possible, the Executor 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. A preliminary decision must also be made regarding what type of probate is required – formal or an alternative to formal for small estates.
- Initiating probate. Probate 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 the Executor must obtain a certified copy of the death certificate, a signed, original copy of the decedent’s Will, and a petition to open probate. By this point, most Executors have retained the services of an experienced estate planning attorney who will prepare the necessary petition.
- Categorizing and valuing assets. The Executor must obtain a date of death value for all estate assets and decide if they are probate or non-probate assets because some assets bypass the probate process entirely.
- Notifying creditors and reviewing 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. The Executor, must review all claims and approve or deny them.
- Litigating any challenges. If a Will contest is filed, the Executor is required to defend the Will submitted for probate throughout the litigation that will follow.
- Paying taxes. The Executor 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.
- Distributing assets. Finally, the Executor must prepare any necessary legal documents to effectuate the transfer of the remaining estate assets to the intended beneficiaries.
Types of Probate
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.
Contact Waukegan Probate Attorneys
Please feel free to download our FREE estate planning worksheet. If you have questions or concerns regarding the probate process in Illinois, contact an experienced estate planning lawyer at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.