When an individual passes, their estate will often pass to probate court, which is the public process of settling debts and distributing assets in an estate. This process can be drawn out and expensive for surviving loved ones, and many people create comprehensive estate plans to prevent their estate from entering probate. To determine if estate planning can benefit you, talk with a Metro East estate planning attorney.
Understanding the process of the probate court is helpful if you are administering an estate or are determining the necessity of an estate plan. Although many people create a simple estate plan with a will, this does not keep an estate out of probate. Probate can cut significantly into the benefits you wish to safeguard for your loved ones, and it takes months or years to complete.
The Steps in Probate
Shortly after a loved one dies, a family member or executor should begin the probate process. To prepare, it’s important to gather important documents, including a will if there is one. Formal probate administration in Illinois requires an attorney, and it can be helpful to gather important asset, debt, and other financial information prior to meeting with an attorney.
Generally, the probate process follows these steps:
Filing a Will and Opening the Estate
First, the deceased’s will must be filed with the probate court. If there is no will, or the will does not name an executor, the individual requesting to be the estate’s personal representative must petition to be named so. Either the executor or the potential representative must file important information with the court regarding the date and location of death, the deceased’s place of residence, the value of the estate, and other information.
The court will review the will to determine if it is legally valid, and it will then approve a named executor or a requested personal representative. The representative may be appointed under supervised or independent probate administration. If a will is found invalid and there are no valid versions, then probate will continue as if there was no will and follow intestate succession laws.
Notice to Heirs and Creditors
Once the representative is approved, they must provide direct notice of probate proceedings to all heirs or beneficiaries of the estate, along with all known creditors. The heirs and beneficiaries need to know so they can receive the assets owed to them, and creditors can begin the process of settling the estate’s debts.
To reach unknown creditors, the representative must publish the notice in the paper. In Illinois, the representative can close creditor claims six months after sending the notice. Assets can’t be distributed until creditor claims are received and fulfilled, so it is important that the representative begins this quickly. Once received, creditor claims will be reviewed to determine if they are valid claims on the estate.
Inventorying and Protecting Assets
During the six months that creditor claims can be made, the representative should use the time to review the will or the assets known to be in an estate. They should then gather, inventory, and secure these assets. The representative has a fiduciary duty to the heirs or beneficiaries of an estate, and this includes complete protection of the estate and its assets. Once assets are inventoried and valued, a list of assets should be provided to the probate court.
Distributing Assets
If there are no will contests or disputes surrounding the estate, the representative must settle creditor claims, pay taxes, and handle other expenses using assets from the estate. Once that is complete, the remaining assets in the estate can be distributed to those named in the will or those who inherit according to succession law.
Closing the Estate
Finally, the representative gives the court the receipts of all relevant transactions and distributions of property. Then, the estate can be closed, and the individual is released from representative duties.
FAQs
Q: What Are the Steps of Probate in Illinois?
A: The standard steps of probation in Illinois include:
- Get court approval of a will and its executor if these are established.
- Name a personal representative if there is no executor.
- Notify all heirs, beneficiaries, and known creditors.
- Publish a notice to alert all unknown creditors.
- Gather, identify, inventory, and value all assets in the estate.
- Pay all valid creditor claims, taxes, and expenses.
- Distribute the assets according to the will or to intestate law.
- Submit documentation and receipts to the court for approval.
- Close the estate.
In Illinois, formal probate requires an attorney.
Q: How Long Does Probate Take in Illinois With a Will?
A: Once the representative of the estate has published a notice to creditors, creditors have six months to submit their claims on the estate. This is typically the minimum amount of time the probate process will take, although many factors can make it take longer, including:
- A high number of beneficiaries
- Complex assets in the estate
- Numerous creditor claims
- Uncertain inheritance laws for relatives
- Any contests against the will
Probate may take up to a year or several years if issues become especially complex.
Q: Do All Estates Have to Go Through Probate in Illinois?
A: No, not all estates have to go through probate, but most do. If an estate is valued at more than $100,000 or includes any real estate property, it will enter probate court if no extra steps are taken. For example, comprehensive estate planning through the use of trusts can prevent an estate from entering probate. Assets that are owned jointly also do not enter probate. If no estate planning is done, all individually owned assets enter probate. For estates under $100,000 and with no real estate, heirs can fill out a small estate affidavit.
Q: What Assets Are Exempt From Probate in Illinois?
A: There are some assets in an estate that are not subject to probate in Illinois, including accounts with beneficiary designations such as retirement accounts, life insurance policies, and payable-on-death accounts. These accounts go to their intended beneficiary without passing through probate.
Joint tenancy assets or transfer-on-death real estate also do not go through probate, although steps must typically be taken to ensure this. A trust is the ideal way to keep any asset out of probate, but it requires significant estate planning to implement one.
Avoiding the Probate Process
It is not easy for loved ones who are dealing with your death to navigate the probate process. When you create a comprehensive estate plan, you may be able to save them time and money. Contact Stange Law Firm today.
