What is Probate?
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. However, most individually held property above a certain cumulative value is subject to probate. While probate is not necessarily a pleasant experience, it is frequently misunderstood. With the assistance of an experienced attorney, the problems of probate can be eased, if not eliminated entirely.
If a Trust was created as part of the decedent’s Estate Planning then generally there will be no need for Probate, however it will be necessary for the Successor Trustee to do Trust Administration. If the decedent did not create a Trust, but did prepare and leave a valid Last Will and Testament, then Probate will frequently be required. There are two types of probate estates: intestate estates, where the decedent died without a Last Will; and testate estates, where the decedent had a Last Will. If the Decedent Testate Estates and Intestate Estates are handled similarly, but with some fundamental differences.
Types of Probate
An intestate estate is opened for a person who dies without a will. In that case, Illinois law controls and determines who is in charge of the estate, which creditors get paid, how much they get paid, in what order they get paid, which heirs receive the decedent’s assets, and in what proportions. If a family member dies without a will, contact an attorney immediately to discuss the impact the Probate Act and Illinois law will have on the estate.
If the decedent did Estate Planning during their life, A testate estate is one where the decedent died leaving a Last Will and Testament. The person’s Will names the Executor, who is the person the court will appoint to collect the decedent’s assets, pay bills, resolve disputes, and ultimately pay out the assets to the individuals the decedent named in his or her Will.
Further, each of these types of probate may be supervised, or independent administration. As the names imply, a supervised administration is one where the court is more involved in each aspect of the estate proceedings. Accordingly, supervised administrations are much more expensive, and therefore should not be used unless there is an overwhelming reason to do so. Generally, both the estate’s and the family’s needs are more satisfactorily handled by having an independent administration, whether the estate is intestate or testate.
The Court Process
The probate process begins with the opening of the estate. The person seeking to open the estate will file the appropriate petition with the Circuit Court Clerk in the county of the decedent’s legal residence at the date of death, along with numerous other legal papers. The petition will be set for hearing before the appropriate court, at which time 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. If everything is in order, the Judge will order the estate open and issue letters of office to the individual bringing the petition.
Notices must be sent to all heirs and legatees or, if not, the person bringing the petition must obtain their waiver and consent to probate and the appointment of the administrator or executor. In addition, notice of the opening of the estate must be given to the public so that decedent’s creditors may make their claims against the estate. This notice to the public is generally accomplished by publishing a notice in a newspaper which meets certain statutory requirements. The opening of the estate and the publishing of the notice, begins the six month claims period, in which creditors must file their claims against the estate or be barred forever from asserting said claims.
Next, if there is no challenge to the will, the named executor or appointed administrator or personal representative, will receive Letters of Office which give authority to act on the decedent’s behalf. The personal representative then begins to collect and preserve the assets of the decedent, paying the decedent’s taxes and debts, and then distributing the remaining assets. The personal representative is under an affirmative duty to use due diligence in going through the decedent’s paperwork and effects to determine who is, or might be, a creditor, and thus is entitled to actual notice of the probate proceedings.
The personal representative must do an inventory of the decedent’s assets, and keep track of records of all the transactions of the estate. A personal representative will prepare inventories, an accounting and reports to present to the heirs, legatees and/or the court, depending upon the type of probate proceedings. A personal representative will also be responsible for filing the appropriate taxes for the estate. Generally the estate needs to file income tax for the decedent for the year of death, and perhaps the year prior to death. In addition, depending upon the size of the estate, the personal representative will have to file Federal and Illinois Estate Tax returns.
After all claims are paid, all disputes resolved, and the inventory and the accounting are complete, the personal representative can distribute the estate. The estate will be distribute in conformity with the plan laid out in decedent’s will in testate proceedings, or as provided by Illinois statute in intestate proceedings. The personal representative may be responsible for funding any testate trusts, including any trusts for the decedent’s children.
The probate process takes anywhere from a minimum of six months up to several years, depending upon the size and complexity of the estate. Realistically, the fastest an estate will be completed is nine months after the decedent’s death, and usually it is slightly longer. Estates where Federal Estate taxes have to be filed usually take at least eighteen months depending upon the type of assets held and the speed of the IRS. In any case, the aid of an attorney goes a long way in smoothing out, if not eliminating the problems which may arise in the probate process. If you wish to discuss a probate issue, please call the Law Office of James C. Siebert & Associates, P.C. /Elder Law & Estate Planning Attorneys of Illinois, P.C. at (847)253-7500 today to schedule an appointment with an experienced Probate Attorney.
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