If you recently lost a family member or loved one, you are undoubtedly going through a tremendously emotional time period. If you are also in charge of administering the decedent’s estate, either because you were appointed in a Will or because you volunteered, you also have an important job ahead of you. One of your first responsibilities as part of that job is to determine if probate is necessary or not.
What Is Probate and Why Is It Required?
Over the course of a lifetime, almost everyone acquires assets that comprise their estate at the time of their death. Some people amass a huge estate that includes complex and valuable assets while other people own little more than their personal possessions at the time of death. Regardless of the size and value of assets owned by a decedent, those assets must be identified, valued, and passed down to the new owners. That is the primary purpose of the legal process known as probate. Probate also serves to authenticate a Last Will and Testament purportedly executed by the decedent as well as litigate any challenges to that Will. In addition, creditors of the estate are notified and provided an opportunity to file claims against the estate during probate. Finally, all taxes, including federal gift and estate taxes, owed by the estate must be paid before the probate process can reach its conclusion.
Why Is Avoiding Formal Probate Desirable?
For most estates, some type of probate is required; however, if formal probate can be avoided is should be. The reason for this is that formal probate is costly, both monetarily and in terms of time. In the State of Illinois, it will take at least six months to probate even a relatively simple estate if an alternative to formal probate cannot be utilized because creditors have that long to file a claim against the estate. Often, formal probate can take considerably longer than six months. All the while, the probate assets remain unavailable to the intended beneficiaries. In addition, the longer it takes to probate an estate, the more expensive it is as a general rule because everyone involved (Executor, attorney, appraiser, accountant) is entitled to a fee for their services.
When Probate Is Not Required
Because formal probate is costly and time-consuming, it is always a good idea to determine if an estate is required to go through the process as early on as possible. Fortunately, like most states, Illinois does offer alternatives to formal probate for estates that qualify. First, you need to identify assets that are not required to go through probate as a matter of course. Common non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Retirement accounts
- Accounts designated as POD or TOD
Illinois also offers a Small Estate Affidavit as an alternative to formal probate if an estate qualifies. This allows you to transfer property by simply filling out the affidavit instead of going through the cumbersome and costly process of formal probate. To use the Small Estate Affidavit alternative, all of the following must be true:
- The total amount of personal property in the estate is worth $100,000 or less;
- The person who died did not own any real estate;
- A court has not given out any letters of office. Letters of office are given out by the probate court to the executor of an estate, giving them the power to give away property in the estate;
- If there is a will, it was filed with the clerk of the court in the county where the person lived within 30 days of the death;
- You are not aware of any disputes relating to the will or the heirs of the decedent; and
- If there are outstanding unpaid claims against the decedent other than funeral expenses, they are listed on the small estate affidavit, and the person who signs it promises to make sure they are paid.
Contact an Illinois Probate Attorney
Please join us for a FREE upcoming seminar. If you have questions or concerns regarding which type of probate is required for an estate, contact an experienced Illinois probate attorney at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.