After someone dies, there is a legal procedure that handles the administrative part of their final affairs. Called “probate” in Illinois, it involves following the instructions in the decedent’s will, if there is one. If there is no will, an executor is appointed and the property is distributed according to Illinois state law.
Illinois Probate consists of five steps, carried out in order:
- File the will in the appropriate probate court, then notify the deceased’s relatives. A petition is filed in court requesting that the will into probate, and appoint an executor for the deceased’s estate. If the deceased died without a will (“intestate”), the petition will request that the court appoint an administrator to represent the estate. The beneficiaries must be notified of the hearing, and be given an opportunity to contest the will if necessary. Additionally, a newspaper notice should also be published in the county where the petition is filed.
- Notify the deceased’s creditors. These companies and individuals must also be given the opportunity to file a claim against the assets of the deceased’s estate. Creditors have six months to file a claim, or they lose their chance to collect.
- Do an inventory of the assets of the estate. Here the estate representatives determine the total amount of assets that the deceased has, as well as the liabilities, including expenses, taxes, and anything owed to creditors. The assets are then appraised before moving to the next step.
- NOTE: If the estate has less than $100,000, and no real estate involved, a full probate process may not be necessary. Instead, the beneficiaries who are named for specific assets can fill out a form called a “simple affidavit” along with a copy of the will and death certificate to claim their inheritance. Some companies or institutions have their own simple affidavit to claim an asset, such as a bank or investment account, so make sure to ask.
- Pay the estate’s expenses. This can include:
- Funeral/burial expenses
- Awards to a surviving spouse and/or surviving child or children
- Income and other taxes, federal, state and local
- Monies owed to the deceased’s employees
- Other estate expenses, i.e., final utility and other bills, creditors claims, etc.
- Distribute the remaining assets from the estate to the beneficiaries. Once all the expenses have been paid, the beneficiaries can receive what they were willed. The executor requests permission from the probate court to commence asset distribution according to the will’s instructions. If there was no will, the assets are distributed according to Illinois law. Once the petition has been granted, the executor then begins distribution, including:
- Liquidation of any assets as needed
- Transfer funds, stocks, or other assets
- Re-title any property as required
- Complete any other tasks to finalize the estate
Once the assets have been distributed and everything finished, the executor creates a final report accounting of all the estate’s assets, how they were handled, any income that was generated, how much was paid for the estate’s administration including expenses, and anything distributed to the will’s beneficiaries.
Unless there is an “interested party” requesting a copy of this report, the executor files a request for discharge. The court discharges the executor or other representative, declares the estate closed and ends the probate process.
Probate can take as little as six months for a straightforward estate case, or several years for more complicated estates with litigation or complex transfers of assets. Will disputes can also extend the time needed for probate. If there are any issues with the will or with probate, you may need the help of an experienced will and estate planning attorney to help finish the probate process.
Chicago’s Probate, Trust And Estate Planning Attorney
Probate is a complicated process that requires prior planning to ensure that your estate is handled properly when the time comes.
James C. Provenza is an estate planning attorney in Illinois with more than 25 years of experience in helping clients with their estate planning needs. He can work with you to ensure that your final wishes are carried out the way you want them. Call our firm today at (847) 729-3939, or use our online contact form.