In Illinois, after someone passes, there is an administrative process called probate that handles the deceased’s final affairs including distributing their assets and property of their estate according to their will. This is the purpose of probate in Illinois.
This court-supervised process identifies the deceased’s assets, settles their taxes, pays debts and creditors, closes out their accounts, and distributes any leftover assets to named beneficiaries according to the deceased’s will. If there is no will, then probate in Illinois distributes assets according to the Illinois succession or inheritance laws.
Another important purpose of probate is to prevent one or more family members from unlawfully removing assets and property from the estate. Your will and probate process ensures the distribution of assets such as money, personal property, jewelry, and real estate to the correct beneficiaries. Your will guides the probate court to carry out the terms of your will.
Again if you pass without a will, called intestate, then the probate court will distribute assets to heirs according to the Illinois rules of descent and distribution. Basically this means:
- if you die with children but no spouse, your children will inherit your estate;
- if you die with a spouse and no children, your spouse will inherit everything;
- if you die with a spouse and children (descendants) then 1/2 will go to your spouse and the other 1/2 to your children;
- and so on, through your relatives.
The Process Of Probate
If there is a will, and the deceased names an executor, he or she must file the will with the local court where the deceased lived, along with other required documents. An estate attorney can assist with these documents, the filing, and ensuring that everything is filed timely.
Heirs of the deceased must be notified, even if they are not beneficiaries. Creditors are notified by a notice published in a local newspaper. An executor may be required to post a bond unless the court waives the requirement.
Once the court admits the document, the executor begins gathering the estate’s assets, cataloging them, and selling assets to pay for funeral expenses, if needed. The deceased’s creditors should also be notified by the executor. Creditors have six months to file a claim.
The executor must also file both a final state and federal tax return on behalf of the deceased.
After the executor has handled all required final duties, he or she must submit a final accounting to the court to show how the estate’s assets were handled, including:
• A listing of the assets
• How the assets were handled
• Any income generated by the assets
• Debts and other expenses paid out by the estate from the assets
• Distribution of assets made to beneficiaries
• Remaining assets and property in the estate
• How the executor plans to handle the remaining assets and property
The executor must get receipts from the beneficiaries who received assets or property to submit to the court alongside the final report. Once everything is complete, the probate is closed.
The complexity of the Illinois probate process will depend on the estate itself, the executor, the beneficiaries, and any contests to the will that may occur.
Is Probate Necessary?
In most cases, it is. If the deceased had a large estate including real estate, or if the will contained defects, probate will be required. Probate is also necessary if the deceased’s beneficiaries include a minor child, or if there are disputes about the heirs or dividing the property. The threshold for probate court is that the property solely owned by the decedent (not jointly) is valued at more than $100,000, or all the probate assets are worth more than $100,000.
An estate under $100,000 and with no real estate only requires a simple affidavit by the person who would receive assets.
Is Having a Will is Important?
A will is important as at least when it comes to probate. It is the minimum thing to have to let others know how you wish your estate – money, property, personal belongings, and other valuables – to be distributed upon your passing.
However, there are ways to avoid probate and use other vehicles such as a trust to perhaps better distribute your estate, protect assets, minimize tax liability and other benefits. Chicago area estate planning attorney, Jim Provenza, of the James C. Provenza & Associates law firm, strongly recommends a comprehensive estate plan that is tailored to your needs. “The focus of my firm—James C. Provenza & Associates, PC in Glenview, Illinois—is to provide financially sound legal solutions for families… In short, my goal is to help you achieve your goals.”
Chicago’s Probate, Trust, And Estate Planning Attorney
Probate is a complicated process that often can be lengthy and expensive. That is why clients often are advised about ways to avoid probate. Though a will is a vital part of an estate plan, you may find a simple pour over will is sufficient for probate, while your trust can more effectively distribute assets to beneficiaries without needing probate. The point is to sit down with an experienced and knowledgeable attorney like Jim Provenza.
As an estate planning attorney in Illinois with more than 35 years of experience in helping clients with their estate planning needs, Jim can help set up your will, trust, and discuss probate administration. He can work with you to find the best way to ensure that your final wishes are carried out the way you want them.