Probate is the legal process by which the Court system distributes your property, pays your debts and settles your 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 are 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 greatly misunderstood and is not as horrible as frequently portrayed. With the assistance of an experienced Attorney the problems of probate can be eased if not eliminated.

Probate generally takes place in the county of your residence at the date of your death, except in regard to real property, and is generally one of two types. The two types are Intestate estates, where the decedent died without a will, and testate estates, where the decedent had a will. These types of estates are handled similarly but with some fundamental differences.

An Intestate Estate is opened for a person who dies without a will. In that case the law of the State of Illinois makes all the fundamental decisions such as, who is in charge of the estate, which creditors get paid, who gets paid, how much and who is first, which heirs receive the decedent’s assets, in what proportions and numerous other issues. If a family member dies without a will, contact an Attorney immediately to discuss the impact the Probate Act and the laws of succession will have on that individual’s estate.

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 decedent’s bills, resolve decedent’s disputes and ultimately pay out the assets to the individuals the decedent named in the 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 much more closely 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 probate process begins with the opening of the estate. The person wanting 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, make a determination of decedent’s heirs and if everything is in order, order the estate open and letters of office to be issued to the individual bringing the petition.

Notices must be sent to all heirs and legatees or, if not, their waiver and consent to probate and the appointment of the administrator or executor must be obtained. In addition, notice of the opening of the estate must be given to the public so that decedents creditor’s may make their claims against the estate. This notice to the public is generally accomplished by publishing a  notice in a newspaper meeting certain statutory requirements. The opening of the estate, and the publishing of the notice, begins the six month claims period, in which time creditors must file their claims against the estate or be barred forever from asserting said claim.  

Next, if there is no challenge to the will, the named executor or appointed administrator, personal representative, will receive Letters of Office which give authority to act in the decedent’s place. 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 to use due diligence in in going through the paperwork and effects of the decedent 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, accountings and reports to present to the heirs, legaties 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 esate. 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 Illinios Estate Tax returns.

After all claims are paid, all disputes resolved, and the inventory and the accounting 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 involving federal estate tax usually take at least eighteen months depending upon the type of assets held and the speed of the IRS in reviewing the submitted documents. In any case, the assistance of an experienced legal assistance goes along way in smoothing out if not eliminating the many little problems which may arise in the probate process. If you wish to discuss a probate issue, please feel free to call Mr. Siebert’s office to schedule an appointment.

FOR MORE INFORMATION ON THIS SUBJECT OR TO SCHEDULE AN APPOINTMENT WITH MR. SIEBERT TO DISCUSS THIS OR ANY OTHER MATTER CONTACTMR. SIEBERT’S OFFICE.

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