The probate process can be confusing and complicated for many who are trying to navigate issues that may come up at the end of the life of a loved one. A good probate attorney is one who is willing to walk a client through the process, address common issues and assist with strategic planning for an estate. Below are answers to common questions that we receive from clients who are attempting to understand the probate process in Illinois.
What is Probate?
Almost everyone leaves assets behind when they pass away. Some individuals will plan extensively for the distribution of their assets, while others leave little direction behind. The process to determine the distribution of assets after someone's passing is called probate. Whether there was a Will or not, legal assistance can help tremendously when going through this process.
How Long Does Probate Take in Illinois?
Every case involves different sets of facts and circumstances so there is not a standard timeline for probate proceedings. Thankfully, we do have an approximate minimal time period as Illinois law requires the executor or administrator of the estate to file notice to creditors and run an official notice in a local newspaper. Upon such notice, creditors have six (6) months to file claims. Once the six month period expires, if there are no other matters before the probate court, the estate may close.
When is Probate Required in Illinois?
Probate is not always required in Illinois, and when it is required it is determined by the amount of property being passed through the estate*. However, probate is not required for assets like life insurance, retirement accounts and other assets that have assigned beneficiaries. These types of assets go directly to the named beneficiary after the decedent's death.
*If an individual passes away with real and personal assets that are greater than $100,000 in value, the estate must go through probate with a judge overseeing the distribution of the assets.
What is a "Small Estate" in Illinois?
Under 755 ILCS 5/25-1, there is an exemption for smaller estates in Illinois to avoid probate. If an individual passes away with assets under $100,000, the use of a Small Estate Affidavit may allow a representative of the estate to collect assets and pay creditors without the need of going through the probate process in court. It is important to seek advice as without the probate process and notice to creditors, creditors may have up to two (2) years to file claims against the estate.
How to Avoid Probate in Illinois?
Many individuals think having a Will will help avoid the probate process. While it may help make the probate process proceed a little faster, it does not avoid the probate requirement. Individuals may plan to put assets in joint accounts with individuals they would like to inherit their assets or name beneficiaries on certain accounts. Another common planning technique is titling assets in a Living Trust in combination with a Will. Discussing a Trust with an attorney will help to understand the process of retitling assets and making sure that the objectives of the estate plan are met.
How much will the Probate Process Cost in Illinois?
There are numerous variables in the probate process so the total cost will vary case by case. There will be certain fixed costs of the probate process such as filing fees and Notice to Creditors; however, the planning put into place by the decedent may help reduce the time and expenses needed to administer an estate. Discussing the process with an attorney beforehand and understanding the requirements and potential issues will hopefully provide you with an approximate cost.
What does "Testate" and "Intestate" mean?
In Illinois, if someone passes away with a valid Will at the time of their death, then that person is said to have died "testate" and their assets will be distributed according to their Will. If someone passes away without a Will, then they are deemed to have died "intestate" and their assets will be distributed according to the laws of Illinois under the intestacy statute 755 ILCS 5/2-1
What are "heirs" and "legatees"?
If a decedent leaves a valid Will in Illinois leaving assets to a specific person, then that person is referred to as a "legatee". If an individual is inheriting under the laws of intestacy in Illinois or by relation to the decedent, then that person is considered an "heir".
How are Creditors Paid after Death?
A decedent's final expenses must be paid before their assets may be distributed to beneficiaries. The creditors are paid from the estate's assets and those assets alone. There is no liability on the executor, administrator or heirs personally. If the estate goes through probate, creditors have up to six (6) months to make claims under 755 ILCS 5/18-3 on the estate as long as notice is properly given. If the estate does not go through probate, creditors have up to two (2) years to make a claim.
Once claims are filed, they are paid in order of priority under 755 ILCS 5/18/-10.
1. Funeral and burial expenses, statutory custodial claims, and expenses of the administration;
2. Surviving spouse's award or child's award;
3. Debts due the United States;
4. Money due employees of the decedent of not more than $800 for each claimant for services rendered within four months prior to the decedent's death and expenses attending the last illness;
5. Money and property received or held in trust by decedent which cannot be identified or traced;
6. Debts due the State of Illinois and any county, township, city, town, village or school district located within Illinois; and
7. All other claims.
How is Property Transferred in Illinois after Death?
Once all claims and expenses have been paid, then the estate may begin distribution to the heirs and legatees of the decedent. The distribution may also be delayed if assets need to be sold such as a home or other property in order to allow for distribution to the heirs and legatees.
If you have any questions about probate or creating an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258. To read more about essential estate planning documents, please click here.
Every case involves different sets of facts and circumstances so there is not a standard timeline for probate proceedings. Thankfully, we do have an approximate minimal time period as Illinois law requires the executor or administrator of the estate to file notice to creditors and run an official notice in a local newspaper. Upon such notice, creditors have six (6) months to file claims. Once the six month period expires, if there are no other matters before the probate court, the estate may close.
When is Probate Required in Illinois?
Probate is not always required in Illinois, and when it is required it is determined by the amount of property being passed through the estate*. However, probate is not required for assets like life insurance, retirement accounts and other assets that have assigned beneficiaries. These types of assets go directly to the named beneficiary after the decedent's death.
*If an individual passes away with real and personal assets that are greater than $100,000 in value, the estate must go through probate with a judge overseeing the distribution of the assets.
What is a "Small Estate" in Illinois?
Under 755 ILCS 5/25-1, there is an exemption for smaller estates in Illinois to avoid probate. If an individual passes away with assets under $100,000, the use of a Small Estate Affidavit may allow a representative of the estate to collect assets and pay creditors without the need of going through the probate process in court. It is important to seek advice as without the probate process and notice to creditors, creditors may have up to two (2) years to file claims against the estate.
How to Avoid Probate in Illinois?
Many individuals think having a Will will help avoid the probate process. While it may help make the probate process proceed a little faster, it does not avoid the probate requirement. Individuals may plan to put assets in joint accounts with individuals they would like to inherit their assets or name beneficiaries on certain accounts. Another common planning technique is titling assets in a Living Trust in combination with a Will. Discussing a Trust with an attorney will help to understand the process of retitling assets and making sure that the objectives of the estate plan are met.
How much will the Probate Process Cost in Illinois?
There are numerous variables in the probate process so the total cost will vary case by case. There will be certain fixed costs of the probate process such as filing fees and Notice to Creditors; however, the planning put into place by the decedent may help reduce the time and expenses needed to administer an estate. Discussing the process with an attorney beforehand and understanding the requirements and potential issues will hopefully provide you with an approximate cost.
What does "Testate" and "Intestate" mean?
In Illinois, if someone passes away with a valid Will at the time of their death, then that person is said to have died "testate" and their assets will be distributed according to their Will. If someone passes away without a Will, then they are deemed to have died "intestate" and their assets will be distributed according to the laws of Illinois under the intestacy statute 755 ILCS 5/2-1
What are "heirs" and "legatees"?
If a decedent leaves a valid Will in Illinois leaving assets to a specific person, then that person is referred to as a "legatee". If an individual is inheriting under the laws of intestacy in Illinois or by relation to the decedent, then that person is considered an "heir".
How are Creditors Paid after Death?
A decedent's final expenses must be paid before their assets may be distributed to beneficiaries. The creditors are paid from the estate's assets and those assets alone. There is no liability on the executor, administrator or heirs personally. If the estate goes through probate, creditors have up to six (6) months to make claims under 755 ILCS 5/18-3 on the estate as long as notice is properly given. If the estate does not go through probate, creditors have up to two (2) years to make a claim.
Once claims are filed, they are paid in order of priority under 755 ILCS 5/18/-10.
1. Funeral and burial expenses, statutory custodial claims, and expenses of the administration;
2. Surviving spouse's award or child's award;
3. Debts due the United States;
4. Money due employees of the decedent of not more than $800 for each claimant for services rendered within four months prior to the decedent's death and expenses attending the last illness;
5. Money and property received or held in trust by decedent which cannot be identified or traced;
6. Debts due the State of Illinois and any county, township, city, town, village or school district located within Illinois; and
7. All other claims.
How is Property Transferred in Illinois after Death?
Once all claims and expenses have been paid, then the estate may begin distribution to the heirs and legatees of the decedent. The distribution may also be delayed if assets need to be sold such as a home or other property in order to allow for distribution to the heirs and legatees.
If you have any questions about probate or creating an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258. To read more about essential estate planning documents, please click here.
Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.
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