PROBATE

What is Probate?

Probate is the court process of administering the estate of an individual has passed away.  The probate process involves opening a probate in the applicable local court and obtaining the court’s authorization to handle and pay or the decedent’s debts and distribute the individual’s assets per the terms of the will or the applicable intestacy laws.  After the probate estate is administered, the court will approve and close the estate.

What is Probate Court?

Probate court is the local court assigned to handle all guardianship, probate, and other estate administration matters in a given county (or district in larger cities).  In smaller counties a single judge will handle both probate and guardianship and in larger counties these matters may be divided and handled by different judges in the same matter.

How long does Probate take?

Probate generally takes a minimum of 6 to 12 months depending upon a number of factors.  Even in simple probate matters, 6 months is a common minimum due to the claims publication requirement under the Illinois Probate Act.  Some of the factors include: (1) the quality and clarity of the decedent’s will; (2) the number of beneficiaries in the estate; (3) whether there are any complications with heirship; (3) whether the assets are complex; (4) whether the decedent has claims or debts against the estate; and (5) whether there are challenges to the will or estate.  

Is there a way to expedite probate and what is a Small Estate Affidavit?

If an Illinois estate has less than $100,000 in personal property and no real estate, a Small Estate Affidavit can typically be used to handle the Estate instead of opening a probate court proceeding.  A Small Estate Affidavit is a form stating the facts and information relating to the estate and that the estate is small enough and routine enough to administer through affidavit. The Small Estate Affidavit is typically prepared by the executor of the estate named in the will or the administer of the estate if there is no will.   Even when the Estate’s assets fit the above requirements, using a Small Estate Affidavit may not always be appropriate and the specific issues related to the Estate must be considered. A few situations in which an otherwise qualifying estate may still be better handled through a probate court include: (1) if there is complicated heirship; (2) if there is potential litigation related to the estate; (3) if there are complicated provisions in the will; or (4) if the estate is insolvent and has multiple creditors and debts.  This list is not comprehensive.

Who fills out the Small Estate Affidavit and does it need to be notarized?

The Small Estate Affidavit is typically prepared by the executor of the estate named in the will or the administer of the estate if there is no will.   A Small Estate Affidavit must be notarized to be valid.

Is Probate an expensive and time consuming process?

Although many people and organizations attempt to portray probate as a monumental and extremely expensive process, probate is typically efficient and straight forward. The amount of time required to probate an estate varies in length based upon the level of complexity and other factors involved in the estate.  Small estates in Illinois may be eligible for administration through a Small Estate Affidavit.

Do wills need to be filed with the Court in Illinois?

Yes.  Illinois law requires that upon the death of the testator, his or her will must be filed with the local Clerk of Court within 30 days after his or her death.  Upon the death of the testator, all wills become public record in Illinois. It is important for the executor to know where the will is and have access to it in order to ensure the will is timely filed with the proper Clerk of Court.

Will using a trust automatically avoid probate?

Not necessarily.  If a person has real property or personal assets totaling over $100,000 that are not properly transferred to a trust and accepted by the trustee, the estate will need to go through the probate process.  It is common for certain types of assets to remain outside of trust. One example is the grantor’s personal vehicle as it may be difficult, or more expensive, to obtain insurance for a vehicle owned by a trust.  Additionally, disputes and challenges to an estate will open up similar proceedings.

What are “Letters of Office” in the probate process?

Letters of Office is a document issued by the Court that empowers the Estate representative to conduct all business on behalf of the Estate.  The representative will collect and inventory all Estate assets, pay the final debts and expenses, and distribute the assets of the decedent to the proper beneficiaries.

Does an Estate need to go through probate in multiple states?

Sometimes a person will pass away with real estate property held in his or her name alone in more than one state or country.  A probate court proceeding will need to be opened in every state or country in which the person has real estate. To avoid this added time, cost, and expense, an individual that owns real estate in two or more states or countries should consider talking with an attorney to create a trust to avoid this more complex and costly Probate administration process.