Q. What is probate?
A. Probate is the legal process by which a court, at the request of a party, identifies and validates an offered document as the will of an individual who has passed away. During probate, a court will conduct a comprehensive inventory of all the property owned by the deceased individual, order for the property to be evaluated and appraised, liquidate property necessary to pay of creditors and other liabilities, and distribute the property to beneficiaries as provided by the will. The court has the task of interpreting the document to ensure that the will of the individual is carried out, unless prohibited by law. An executor that is named in the will usually invokes the probate process.
Notably, only the assets that the deceased person owned solely will go through probate. Additionally, in Illinois, a formal probate proceeding will only proceed if all of the assets are worth more than $100,000.
Q. What if the assets of a deceased person are worth less than $100,000 in Illinois?
A. If the total value of the estate in question is less than $100,000 and does not include any real estate, the beneficiaries can use a simple affidavit to claim the inheritance without going through probate. The affidavit must provide basic information about the deceased individual and state whether or not there is a will. If there is one, then the claimant must present a copy of the will along with the affidavit.
Q. How do the formal probate proceedings begin?
A. Probate cases in Illinois are begun in the Circuit Court in the county where the deceased person was living. The person named in the will as the executor of the estate, usually through an attorney, has to file the will with that court and formally open a probate case. The executor must then send notice of the proceeding to the person’s heirs as provided by Illinois state law even if they aren’t named in the will. Notice must also be published in a local newspaper to alert the estate’s creditors. Usually, the executor also has to post a bond with the court, which is insurance designed to protect the estate from losses caused by the executor.
If the court admits the will to probate and appoints the person named in the will as the executor, the executor takes charge of the estate assets. The executor then, at the direction of the court, will gather and inventory the estate’s assets. If necessary, the executor will liquidate some of the assets in order to satisfy outstanding debts and liabilities. Creditors have six months to file claims after notice of the probate is published or after the executor directly notifies them. If they fail to do so, then they forfeit their claims to the estate.
After all the creditors are paid, the executor then distributes the remaining assets as provided for in the will. The court will consider any contests submitted by the heirs or the beneficiaries regarding how the estate is distributed.
Q. What if there is no will? What happens during probate?
A. If the deceased individual did not leave a will, then the court will appoint an administrator for the estate. Then, the estate is distributed according to the laws of intestate succession under Illinois statutes. The heirs are provided below:
- If there are children but no spouse, the children inherit everything.
- If there is a spouse but no children, the spouse inherits everything.
- If there is a spouse and children, the spouse inherits 1/2 and the descendants inherit 1/2.
- If there is no spouse or children but there are living parents, the parents inherit everything.
- If there are no living parents, spouse, or children, then the siblings inherit everything.
- If there are both parents and siblings but no spouse and children, then parents and siblings will inherit the property in equal shares. If there is only one living parent, he or she will inherit a double share.
Probate is a complex process, and it is highly encouraged that individuals should draft a will in consultation with an attorney in order to ensure that their wishes regarding the distribution of property are carried out and not left to the state. The Law Office of Richard J. Arendt can help you draft a will or, if you are named as an executor, can help you through the probate process. Richard J. Arendt is dedicated to providing seasoned representation in the greater Chicagoland area, including Boone, Cook, Du Page, Kane, McHenry, Lake, and Will counties. You may call us to schedule an initial consultation at (312) 642-9606.