In Illinois, whether probate is required depends on the nature and value of the deceased person’s estate.
Probate in Illinois is a legal process that is overseen by a probate court. When a person dies, their assets – including real estate, personal property, and financial accounts – must be managed and distributed. Probate is the court-supervised process of authenticating a last will and testament, if one exists, appointing an executor or administrator, identifying and inventorying the deceased person’s property, having the property appraised, paying debts and taxes, and distributing the remaining property as the will (or state law, if there’s no will) directs.
Under probate laws in Illinois, if the total value of the deceased person’s real estate, located in Illinois, and personal estate, not including exempt property, exceeds $100,000 and does not pass automatically to others by operation of law or contract, probate is necessary.
The term “official probate process” refers to the formal court process that commences upon the death of an individual who owned assets that did not automatically transfer upon death. This process includes several steps, which we will explain in more detail below.
First, a probate case is opened in the county where the decedent lived at the time of death. A Petition for Probate of Will and for Letters Testamentary or a Petition for Letters of Administration, if no will exists, is filed with the probate court. An attorney usually prepares the petition, although it can be done by an individual.
The person responsible for administering the probate process is called an executor if there is a will or an administrator if there is no will. This person is responsible for gathering and managing the assets of the estate, paying any debts and taxes, and ultimately distributing the assets to the beneficiaries. The executor or administrator has a fiduciary duty to the estate, meaning they must act in the best interest of the estate and its beneficiaries.
Identifying and inventorying the deceased’s property is one of the first tasks the executor or administrator will undertake. This involves locating all assets owned by the deceased and creating a comprehensive list or inventory. The assets may include real estate, bank accounts, investment accounts, vehicles, personal belongings, and any other assets. Each asset will be valued as of the date of death. Some assets may require a professional appraisal to determine their value.
The probate court will supervise the payment of any debts and taxes owed by the deceased. Creditors are given a certain period to make claims against the estate for any debts the deceased owed. It’s the executor’s duty to notify creditors, resolve valid claims and dispute invalid ones.
Once all the debts and taxes have been paid, the remaining assets are distributed to the beneficiaries as outlined in the will. If there’s no will, Illinois’ intestacy laws govern the distribution of assets.
Court proceedings for probate can be complex and time-consuming, often lasting anywhere from a few months to over a year, depending on the complexity of the estate. They typically involve multiple court dates where the executor or their attorney must appear before the judge to provide updates and receive instructions.
Even though it’s possible to navigate the probate process without an attorney, it can be challenging and risky, especially if the estate is substantial or there are complex issues, such as disputes among beneficiaries or claims against the estate. Hiring an experienced probate attorney can provide invaluable guidance and assistance through this intricate legal process.
Are There Ways to Avoid the Probate Process Under Illinois Laws?
There are several ways to avoid the probate process in Illinois:
Joint Ownership with Rights of Survivorship
Joint ownership with rights of survivorship is a common method for avoiding probate. When property is owned in this manner, it automatically passes to the surviving owner upon the death of the other owner without the need for probate.
To set up joint ownership with rights of survivorship in Illinois, the owners need to include the appropriate language in the title document (such as a deed for real estate or the account agreement for a bank account). The language often used is “joint tenants with rights of survivorship,” but local laws and banks may require specific wording. It’s best to consult with an attorney or financial advisor to ensure the title is correctly established.
Keep in mind that joint ownership can have unintended consequences, such as making the property subject to the co-owner’s creditors, so it’s important to fully understand the implications before establishing joint ownership.
Payable-On-Death and Transfer-On-Death Designations
Payable-on-death (POD) and transfer-on-death (TOD) designations are other tools that can help avoid probate. By adding a POD or TOD designation, you can name a beneficiary who will automatically inherit the asset upon your death without the need for probate.
For bank accounts, you can ask your bank about adding a POD designation. The bank will usually provide a form to fill out where you can name the beneficiary.
For securities like stocks and bonds, you can register them with a TOD designation. This is typically done through the brokerage firm where the account is held. Illinois also allows TOD registration for vehicles, which can be done through the Illinois Secretary of State’s office, and for real estate, which can be done by recording a TOD deed with the county recorder’s office.
Keep in mind that while the asset passes directly to the named beneficiary and avoids probate, it’s still part of your taxable estate for estate tax purposes.
Living Trusts
A revocable living trust is a legal entity that you create during your lifetime to hold your property. You transfer ownership of your property into the trust, and you can serve as the trustee, maintaining control over the property during your lifetime. Upon your death, the property in the trust passes to the named beneficiaries without the need for probate.
Creating a living trust involves drafting a trust agreement, a legal document that names the trustee and beneficiaries and outlines how the trust assets should be managed and distributed. Once the trust agreement is signed, you transfer property into the trust by changing the ownership from your personal name to the name of the trust.
While a living trust can avoid probate, it won’t avoid estate taxes if your estate exceeds the exempt amount. Additionally, a living trust requires ongoing management, and any property that’s not transferred into the trust will still be subject to probate. For these reasons, it’s often a good idea to also have a will, even if you have a living trust.
What Are Some Common Issues in Illinois Probate Claims?
There are several issues that often arise in the course of Illinois probate claims:
- Will contests: One of the most common probate issues is a will contest. This happens when someone believes the will is invalid, perhaps because the person making the will was unduly influenced or not of sound mind at the time the will was made.
- Claim disputes: Creditors have a set period to submit claims against the estate for any debts the deceased owed at the time of their death. Disputes often arise regarding the validity and amount of these claims.
- Living trust issues: If the deceased had a living trust, it’s possible there may be issues or disagreements about the trust’s terms or administration.
- Breach of fiduciary duty: Executors and administrators have a fiduciary duty to act in the best interest of the estate and its beneficiaries. If they fail to do so, they could be held liable.
Do I Need a Lawyer for Help With Probate Laws in Illinois?
Understanding probate laws can be challenging, and every estate is unique. While it is possible to navigate the process without legal assistance, doing so can be risky, particularly if the estate is large or complex.
A probate lawyer can guide you through the process, handle disputes, and ensure that the decedent’s estate is administered in accordance with Illinois law. If you need assistance with probate laws in Illinois, find a qualified Illinois probate lawyer through LegalMatch to help you through this complex process.
