Probate of decedent’s estates in Illinois is the legal process for administering someone’s estate after they have died. The result of the legal process is that the estate of the decedent (deceased person) is distributed to the designated heirs (inherits because of relationship to the decedent) or legatees (inherits because they have been left something in the will), and the debts owed to creditors are paid off or resolved.
What is the process for handling a decedent’s estate?
Gather information. In order to successfully administer a decedent’s estate, you must first gather as much accurate information as possible about the decedent’s assets, liabilities, and legal obligations. You will need to know if there is a will (original) and/or any trust agreements (revocable, irrevocable, land trusts). Documents such as divorce decrees, settlement agreements, prenuptial or postnuptial agreements, and adoption decrees can have an impact on the provisions of the will or trust, and should also be gathered. Your attorney can give you a full list of information to gather regarding funeral arrangements, the decedent’s personal obligations, documents, assets, business interests, and other miscellaneous information needed.
File the Will. If the decedent had a will, then the original will need to be filed with the clerk of the circuit court where the decedent resided at the time of death. This must be done within 30 days of the person learning of the decedent’s death, regardless of whether a probate estate will be opened in court.
If there is a will, this is called a testate estate. If there was no will or trust agreements and the case must be opened in probate, then it is an intestate estate.
Small Estate Affidavit. Probate may be avoided if the gross value of the decedent’s personal estate is $100,000 or less and the decedent was an Illinois resident and there is no real estate involved. This would require an affidavit called a Small Estate Affidavit. You should ask your attorney if this applies to your situation.
Types of Estate Administration. Depending on the circumstances of your case, the decedent’s estate may be administered under Summary Administration, Supervised Administration, or Independent Administration. Your attorney will help you determine which route is most appropriate based on the facts in your matter.
The decedent’s estate is generally probated in the county in which the decedent resided at the time of death. However, if the decedent owned real property in another state, an Ancillary Estate will need to be opened to sell and/or distribute that property.
Personal Representative of the Estate. The personal representative of the estate, also known as the “executor of the will,” is a person whom the decedent chose to carry out his/her wishes. If, however, that person is not able to or willing to act as an executor, if there was no will/trust, or if the court deems the named person not to be the best person to do so, the court will appoint another to act in such capacity. An executor is responsible for ensuring that the debts and liabilities are paid or resolved, although he/she is not personally liable for them. An executor is also responsible for ensuring that the assets are distributed in accordance with the decedent’s wishes. If there are lots of assets and/or liabilities in the estate, this can be a time-consuming endeavor and the executor may be allowed compensation for his/her time. Similarly, the executor may be required to obtain a bond to protect the assets.
Inventory and Accounting. There are three types of accountings that may be required in the course of a probate administration: (1) inventory, (2) current account or a series of current accounts, and (3) a final account to itemize the distribution of the estate assets. The representative may be required to prepare, file, and serve upon interested parties an inventory of the decedent’s Illinois real estate, all personal property, and any cause of action on which the estate has a right to sue. Similarly, the representative may be required to prepare, file, mail, deliver, and/or publish a final account to all interested persons.
Distribution of the Estate Assets. Once all court formalities have been satisfied, and the debts and liabilities (claims, taxes, attorney fees, and executor reimbursements and fees) have been paid or resolved, the Court will be ready to allow distribution of assets. Generally, that does not happen before the passing of the 6-month claim period during which creditors have a right to file a claim against the estate. The executor has a duty to deliver specifically bequeathed or devised property to the beneficiaries. Items that were not specifically bequeathed or devised to a specific beneficiary (left for someone in the will) are part of the residuary estate that will be distributed per the terms of the will or per the law. Distributions to minors or disabled persons, trusts, or deceased beneficiaries will require special attention. Similarly, the distribution may be altered if the debts and liabilities outweigh the assets.
Where to Begin the Probate Process
The Law Offices of J. Jeltes, Ltd. can help you navigate challenges that may arise during probate administration, from minor and disabled heirs and legatees to dealing with creditors or unfunded trusts. Our attorneys have experience with both contested and uncontested estates, asset division, and probate administration. Contact us today to discuss your case.