Probate Questions and Answers
Q. What is Probate?
A. Probate is the process where an individual's estate is concluded upon death, including the collection of assets, payment of debts, and the distribution of the balance of the Decedent's assets to the beneficiaries.
Q. What is the purpose of Probate?
A. The purpose of probate is to determine who is rightfully entitled to the property of the deceased, including creditors.
Q. Must an Estate be Probated?
A. In Illinois Probate is generally necessary when the aggregate value of the decedent's personal estate is valued at $100,000 or more, or the estate includes real property and the assets are not in Trust or transfer on death accounts.
Q. Is hiring a Probate Attorney necessary?
A. No. Most people choose to hire an attorney because the process can be very difficult for someone that does not have the necessary legal knowledge.
Q. How long does Probate take?
A. Probate will take at least 6 months after the initial court date to open the estate. A more realistic minimum time would be 9 to 12 months. Probate can take a great deal longer depending upon issues that arise including claims, disputes between beneficiaries, and the need for an ancillary estate. If an estate tax return is required to be filed, then the estate will likely remain open for at least 18 months.
Q. How expensive is Probate?
A. The expenses involved in Probate generally include legal fees and court costs. The amount of legal fees is generally based on the time involved. The more complex the estate the greater the legal fees. Costs include filing fees, publication fees, and surety bonds.
Q. Is an Executor entitled to be paid?
A. Yes. Every executor and administrator is entitled to receive a reasonable fee for his or her services.
Q. Is a person named as Executor required to serve?
A. No, you are not required to accept the role of executor.
Q. What is ancillary Probate?
A. Ancillary probate is probate in a state other than the decedent's domiciliary estate. The majority of the decedent's estate is probated in the state of his primary residence, however if the decedent owned real property in another state, it will be necessary to open an ancillary probate estate in the other state.
Q. What are Letters of Office?
A. "Letters of office" are the pieces of paper that issue from the probate court to the executor or administrator of an estate, which are the proof of the executor's or administrator's authority to act on behalf of the estate.
Q. What does the Executor do?
A. The executor is the individual who has been specifically named in the will of the deceased person to serve as the representative of the estate. The executor must collect all of the estate assets, pay the final debts of the deceased individual, and make distributions of the estate assets pursuant to the terms of the will. In short, the executor must faithfully follow the provisions of the will as laid out by the deceased person. In addition, the executor typically hires an attorney to assist in the administration of the estate due to the complexities involved with probate. The attorney can provide the necessary instructions to carefully carry out the terms of the will and the provisions of the Illinois Probate Act. The attorney can also defend the executor in an Illinois Probate court with regard to any attacks against the executor's actions in handling the administration of the estate.
Q. What if there is no Will?
A. If a person dies without a will in Illinois, and an intestate probate action is necessary, an interested party can petition the court to serve as the administrator. The administrator will need to obtain a surety bond to serve as the estate representative, and notice will need to be sent to the relevant heirs regarding the intestate estate
Q. What is a Will contest?
A. A will contest is a legal action that challenges the validity of a will and/or the terms of the will. Will contests typically involve allegations that a will was inadequately executed, invalidated by a later will, or was the result of forgery or undue influence.
Q. Are there ways to avoid Probate?
A. There are several ways to avoid the probate process. These methods include creating a joint ownership with right to survival in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death bank accounts and transfer-on-death securities; and placing property in a revocable living trust. Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.
Q. What are the advantages of avoiding Probate?
A. The probate process can be slow, and can tie up property anywhere from several months to several years. In addition, it can be costly since attorney fees, executor fees, and court fees are paid out of the estate.
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