Probate Litigation

Probate is the legal process by which the court system distributes your property, pays your debts, and settles disputes after your death. Not all property passes through probate. Property held in trust, jointly with rights of survivorship, or in transfer on death accounts generally is not subject to probate. Probate can be simplified or avoided.

If the decedent did not create a trust, but did prepare and leave a valid will, then probate will frequently be required. There are two types of probate estates:

  • Intestate estates, where the decedent died without a will
  • Testate estates, where the decedent had a will  

Without a will, Illinois law controls and determines who is in charge of the estate, which creditors are paid, and which heirs receive assets.

With a will, a named executor is appointed by the court to collect the decedent’s assets, pay bills, resolve disputes, and distribute assets to beneficiaries.

The Court Process

The probate process begins with opening the estate and filing the appropriate petition with the Circuit Court Clerk in the county of the decedent’s legal residence at the date of death. The judge will review the documents, determine that the proper individual is bringing the petition, that any surety on any bond required is obtained, and that the decedent’s heirs are properly identified.

Notices

Notices must be sent to all heirs and beneficiaries, or a waiver obtained to consent to probate. In addition, notice must be given to the public so creditors may make their claims against the estate. This is generally accomplished by publishing a notice in a newspaper.

Challenges to the Will

If there are challenges to the will, the process is delayed until a resolution is made. This can happen when an heir or beneficiary feels they have not been considered fairly. They must meet certain qualifications to legally contest the will. It is possible to negotiate between family members outside of court and avoid litigation. Elder Law & Estate Planning Attorneys of Illinois, LLC can help to mediate or represent you should the dispute require litigation.

If there is no challenge to the will, the named executor, appointed administrator, or representative, will receive Letters of Office which give authority to begin collecting and preserving the assets of the decedent, paying taxes and debts, and then distributing the remaining assets.

Asset Inventory

The personal representative must inventory the decedent’s assets and document all the transactions to present to the heirs, beneficiaries, and the court. A personal representative will also be responsible for filing the appropriate taxes, including income tax for the decedent for the year of death, and sometimes the year before death. Depending on the size of the estate, the personal representative will have to file federal and Illinois estate tax returns.

Estate Distribution

The estate will be distributed according to the decedent’s will or by Illinois statute when there is no will. The personal representative may be responsible for funding any trusts, including those for the decedent’s children.

In Illinois, the probate process averages nine months or slightly longer. Estates where federal estate taxes must be filed can take at least eighteen months. The aid of an attorney goes a long way in reducing or eliminating the problems that arise in probate.

The experienced team at Elder Law & Estate Planning Attorneys of Illinois, LLC guides you in selecting the proper estate planning tools for your situation. Each attorney has unique skills in the broad field of estate planning, including long-term care planning, guardianship, estate and trust administration, and probate litigation in Illinois. Schedule a consultation with one of our experienced attorneys to protect what matters for your family.

CONTACT US or call (847)253-7500 to schedule an appointment.

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