Frequently Asked Questions
A: In Illinois, Probate is a court supervised legal process of administering a person’s estate after their death. It makes sure property and possessions are given to the correct people, and any taxes or debts owed are paid in full. If there’s a written will, the court checks that it was signed and witnessed correctly and is valid, and then makes sure the directions in the will are carried out.
A: Any Illinois estate that exceeds $100,000 in value must go through the probate process unless the property is subject to certain exemptions. Some exemptions include assets that are titled jointly with another individual, life insurance proceeds, and any retirement funds where a beneficiary other than the deceased person’s estate was chosen. Additionally, assets placed in a revocable living trust are not subject to the probate process.
A: In Illinois, probate cases are handled by the Circuit Court in the county in which the deceased person was living. Some larger counties have a special probate division of the circuit court. Probate is the responsibility of the person named in the deceased person’s will as the executor of the estate. If there’s no will, someone must step up and ask the court to be appointed as “administrator” of the estate, a job that is just the same as an executor. (Executors and administrators are also sometimes referred to as “personal representatives.”)
A: The probate process starts when the executor files the will with the local court and then, if necessary, opens a probate case by filing several documents. Usually, the executor hires a probate attorney to draw up and file the papers. Notice of the proceeding must be sent to the deceased person’s heirs—the people who inherit in the absence of a will—even if they aren’t named in the will. Notice is also published in a local newspaper, to alert creditors.
A: On average, probate in Illinois takes no less than twelve months. The probate process must allow time for creditors to be notified, filing of required income tax returns, and the resolution of any disputes. Creditors must file any claims against the estate within six months of notification. Once the six-month period has passed, creditors are prohibited from making claims against the estate.
A: If there is a will, the Personal Representative (sometimes referred to as the “executor” or “executrix”) is usually responsible. If there is no will, an “administrator” is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.
In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.
A: The main tasks of a Personal Representative are to:
(1) determine if there are any probate assets;
(2) identify, gather, and inventory the assets of the deceased;
(3) receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits);
(4) set up a checking account for the estate;
(5) figure out who is going to get what and how much under the Will (if there is no Will, the state’s “interstate succession laws” apply);
(6) value or appraise the estate’s assets;
(7) give legal notice to potential creditors (the procedure and deadlines for creditors to file claims vary from state-to-state);
(8) investigate the validity of all claims against the estate;
(9) pay funeral bills, outstanding debts, and valid claims;
(10) pay the expenses of administrating the estate;
(11) handle various paperwork, such as discontinuing utilities and charge cards, and notifying Social Security, Civil Service, and Veterans Administration of the death;
(12) file and pay income and estate taxes;
(13) distribute the remaining property in accordance with the instructions provided in the deceased’s Will; and
(14) close probate.
A: An executor or administrator who is derelict in his or her duty is personally liable for damages caused in the administration of the estate.
Liability may arise from improperly managing the assets of the estate, failing to collect claims and moneys due the estate, overpaying claimants, selling an asset without the authority to do so, or at an inappropriate price, neglecting to file tax returns on time, distributing property to the wrong beneficiaries, etc.
This means that the Personal Representative might wind up paying for the loss out of his or her own pocket.
A: If someone files an objection to the Will or produces another Will, what is known as a “Will contest” has begun. While Will contests are not that rare, and while few people actually win one, they can be extraordinarily costly and create incredible delays.
It’s also important to know that the requirements for contesting a will require a person to have “standing” to mount a contest. Despite the fact that you feel your next door neighbor’s children ignored her and treated her badly. that does not give you the right to contest her will. If, a person has proper standing to contest a will (ex: a child who was cut out of the Will by an angry parent, or even by a kindly parent who felt that the local charity, not his children, should get his assets) that person would have standing to bring a “Will contest”. If a Will gives one sibling 2/3rds of a parent’s estate and the other 1/3rd, the one receiving less has standing to bring a Will contest. Similarly, if a later Will is less favorable to someone than an earlier Will, or no Will at all, that person has standing. A Will contest sometimes is launched to have a different person, bank or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the Will.
A: Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate.
The typical objections and unhappiness is not one of them are:
(1) the Will was not properly drawn, signed or witnessed, according to the state’s formal requirements;
(2) the decedent lacked mental capacity at the time the Will was executed;
(3) there was fraud, force or undue influence; or
(4) the Will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state.
Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
ADMINISTRATOR: The Administrator is appointed by the court to administer the estate when the decedent did not leave a Will (called dying intestate).
BENEFICIARIES: A Beneficiary is the recipient of funds, property, or other benefits, as from an insurance policy or will. When a property is sold in a trust or probate sale, the proceeds are given to the beneficiary or divided in some manner between the beneficiaries (minus all outstanding bills, fees, and monetary amounts owed from within the estate).
DECEDENT: The person who died.
EXECUTOR: The Executor is the person named in a decedent’s Will to administer the estate.
HEIR: A person who inherits.
INTESTATE: When someone dies without leaving a Will.
REAL PROPERTY: The term used to refer to property (homes, condos, etc…) in probate and trust sales.
TESTATE: When someone dies leaving a Will.
TRUSTEE: A Trustee manages the property of a trust. There are two kinds of trusts: a testamentary trust or a living trust (also known as an inter vivos trust). A testamentary trust is established in a Will and takes effect after the individual’s death. The trustee is appointed by the court. A living (inter vivos) trust is set up while the person is still alive: the individual transfers his or her property to the trust. The trustee of a living (inter vivos) trust is named in the trust and is not court-appointed; often it is the person who formerly owned the property and who still manages it as trustee.
WILL: A legal document stating what will happen to a person’s personal and real property after death.