Help With Legal Matters Required at a Difficult Time: The Probate Process
Probate is the process of validating the will of a person who has died, or administering the distribution of assets of an individual who has died without
leaving a will. What sounds like a simple process can easily become complicated when multiple family members with competing agendas become involved.
The SI Elder Law probate attorneys represent one individual in such a case, which may mean helping the executor of a will carry out the wishes of the deceased, or protecting the interests of a potential beneficiary of the estate.
Why Is the Probate Process Necessary?
Probate law is invoked by the courts to ensure two things after a person dies:
The deceased’s taxes and debts are paid
The deceased’s remaining property and assets are distributed as they wished.
Generally, the estate of a deceased person in Illinois goes into probate if the estate is worth $100,000 or more, and the assets of the estate were owned solely by the deceased.
If the total value of the deceased person’s estate is less than $100,000 and doesn’t contain any real estate, a formal probate proceeding is not required. Instead, those who have a claim on assets can use a simple small estate affidavit (sworn statement) to claim their inheritance.
Probate Attorneys at SI Elder Law will Ease You through this Foreign Process at a Difficult Time
Because of our long experience as elder law attorneys in Southern Illinois, we can help you navigate the probate process in an expeditious and cost-effective manner. If you have questions regarding the probate process, or need assistance with probate, please use the form to contact us.
Need to Discuss Your Probate Case?
Fill out the form below or call us at (618) 997-3500 to schedule your free consultation with the probate attorneys at SI Elder Law.
Wills and the Probate Process
If there is a will, the named executor files the will with the local court. If it’s necessary to open a probate case, several additional documents must also be filed.
By law in Illinois, anyone who has possession of a deceased person’s will must file it with the Circuit Court in the county in which the deceased person was living in the 30 days prior to their death. Failure to file could bring a fine. It is a felony to willfully hide the will of a decedent.
If there is no will, someone connected to the deceased should petition the court to appoint them “administrator” of the estate.
If no one connected to the decedent’s family steps forward, the Public Administrator of the county where the person died will administer the estate.
The State of Illinois gives creditors six months to file any claims against the estate of a decedent. Therefore, an estate in Illinois will be in probate for at least six months. If an estate does not go into probate, the law allows creditors to file claims for up to two years.
In a best-case scenario, the court can certifying the decedent’s last will and testament as authentic and, once taxes and debts are satisfied, all remaining assets can be distributed as outlined in the will. Overall, an uncomplicated probate process can finish in about a year.
But even in the best-case scenario, when an estate must go into probate there are technical steps that must be taken to satisfy the law. Even in a simple probate filing, an SI Elder Law attorney can remove this burden from you, while ensuring everything is done correctly and that the process is a smooth and fast as possible.
Gather Documentation for Entering Probate
If you have been named an executor of a will or plan to petition to become administrator of an estate, the following steps are necessary:
Determine whether the decedent left a will, and obtain a copy of it if one exists.
Compile a list of potential heirs, such as the decedent’s parents, spouse, children, grandchildren and siblings. Obtain full names, addresses and other contact information for each person.
Determine what assets the deceased owned at his or her death. Checking the decedent’s income tax returns from past years is a good way to determine what assets he or she owned. Assets may include:
A home or other real property
Bank and investment accounts
A closely held business
IRA or 401(k) account(s)
Collect any legal documents, such as:
Title insurance policies
Put together a list of the deceased’s debts. Usually, the best way to identify the deceased’s creditors is by collecting the deceased’s mail over the course of 30 days. Debts may include:
Lines of credit
Other outstanding bills or invoices
All of this information is necessary to settle an estate.
The executor must notify known creditors that the estate is going into probate, and publish public notice of the probate case (a newspaper legal notice) so that other creditors may see it.
In addition, the executor (or appointed administrator) is responsible for paying valid claims, such as funeral expenses and legal fees, from estate assets.
Before the estate can be closed, the executor must file a full accounting of the estate’s assets, payments, any income generated by the estate, etc., and how remaining assets are to be distributed.
As probate lawyers representing the executor of an estate in probate or headed to probate, SI Elder Law can advise the executor and/or take care of many of these duties.
Assets That Are Not a Part of a Will in Probate
Certain assets that a decedent may have held do not need to go through probate, including:
Assets owned in joint tenancy (multiple parties) or tenancy by entirety (jointly owned through marriage). In such cases, ownership passes to the survivor.
Assets held in trust. A revocable living trust may be designed specifically to avoid probate.
Assets subject to a beneficiary designation, such as retirement accounts for which a beneficiary has been named.
Real estate subject to an Illinois transfer-on-death deed.
Why Does Probate Become an Issue?
It is possible to read up, ask questions at the Circuit Court offices, and deal with a probate proceedings on your own. If the will is straight-forward and there are no disputes, a person of reasonable intelligence and energy can do so quite adequately.
Unfortunately, it is not at all unusual for disputes and complexities to arise. Probate disputes commonly arise when:
It’s unknown whether the deceased left a valid will, or it’s known that there is no will.
A will is contested.
A child or spouse is left out of a will.
There is bad blood between family members.
An heir has lost touch with the family and shows up to claim their inheritance.
To be blunt, if a great deal of money or valuable property is on the line in a deceased’s estate, anything can happen. This is particularly true if there is any reason to question the deceased’s intentions.
If SI Elder Law does not already represent the executor / administrator of a probate case, we can represent other parties who dispute the will or the executor’s handling of the estate. Those who should be beneficiaries of an estate have rights, and we can work to protect them. We understand what the law prescribes for heirs when no testamentary document exists or when the will or trust does not follow state law, such as a will that neglects a spouse.
We understand the estate planning process as well as the probate process, so our attorneys know what is important when determining whether a testamentary document, such as a will or a trust, is genuine. We know how to determine the intent of the author of a will or trust, and how to persuade a court of our findings.
Hire an Experienced Probate Litigation Lawyer in Southern Illinois
Because SI Elder Law has worked with hundreds of estates in Southern Illinois over many years, we have seen the numerous problems and potential issues that can exist when an estate plan and/or a will has not been properly prepared or isn’t being followed.
If you are the executor of an estate, SI Elder Law can help you with your legal duty and ensure you discharge your responsibilities properly and efficiently. If you are the beneficiary of an estate who has questions about its disposition, we can help you determine whether your claim against an estate is valid and worth pursuing. In all manners concerning disputed estates, we can serve as a calm, dispassionate and professional guide to the law’s requirements and what’s known of the deceased’s intentions and desires.
We offer a free, no obligation initial consultation. Call to set an appointment today.