In Illinois, probate is the process of transferring assets from a decedent to their heirs and creditors. If the assets are only in the decedent’s name – with no beneficiary, co-owner, or successor in interest – the primary way to transfer assets is to do a “probate estate.”
A Probate Estate requires the following:
- Going to the probate court and filing a petition
- Naming someone as the administrator (who’s in charge of marshaling the assets),
- Doing an inventory of the assets
- Doing an accounting of what came in and what went out
- Figuring the net balance and dividing it according to the laws of intestate heirship
Intestate heirship is the default clause in the Probate Act that discusses who gets what share of the assets. For example, if there’s a surviving spouse and children, the spouse receives 50%, then the children divide the other half. If it’s a deceased child, the parents get two shares, and the siblings get a share each.
The Most Common Misconceptions People Have About Probate
One of the most common misconceptions about probate is that people think it takes a long time, is very expensive, and doesn’t provide a structure for the distribution of assets.
One reason for this is that there is a provision in probate law where the creditors have two years to file a claim for repayment if someone dies. Fortunately, you can easily amend this by opening a probate estate and publishing it for the creditors.
By doing this, you can reduce the claim period from two years to six months from the date you are appointed the administrator and publish the case. In the meantime, you can sell the assets and work to settle other aspects of the estate; though it’s important to note, you can only distribute them once the probate creditors’ period ends.
The People Involved In A Probate Process
If there’s a will, then the will declares an executor. Also, if there’s a will, we must file the original with the probate court clerk, for the judge needs to review it and make sure that it meets all of the necessary criteria.
The necessary criteria for a will include the following:
- The Witnesses
- A Notary
- The Attestation Clause
The attestation clause indicates that the witnesses viewed the testator signing the will in front of them and that the testator was of sound mind and memory. Only then can those assets go to someone other than the heirs.
Assets can go to whoever is designated in the will to receive them. The only exception is that you cannot disinherit a spouse. Even if you don’t put the spouse in the will, the spouse has a right to renounce the will and take a statutory share of the assets. If there is no will, there’s a default provision in the Probate Act regarding how those assets will be distributed.
What Assets Go Through Probate Process In Illinois
The probate process in Illinois handles assets in the decedent’s name only. (This means that these assets cannot also have a beneficiary, successor, or joint tenant.)
Additionally, Illinois probate only handles assets that are located within the state. If an asset is out of state, the party would need to open an “ancillary estate” in that other state. For instance, for real estate in Mississippi, they would need to open another probate estate in Mississippi to transfer that asset.
How Smaller Estates Are Handled In Probate
A small estate valued at $100,000 or less may utilize a Small Estate Affidavit (depending on the holder of those assets). A Small Estate Affidavit states that the funeral expenses are paid, attests that there are no claims, and lists the heirs and what percentage of the estate to which they’re entitled.
Many banks and insurance companies today still require you to open a probate estate and appoint an administrator to deal with the assets. However, some parties and institutions will accept a small estate affidavit instead.
What You Need To Know If You’re Involved In A Probate Estate
People should know that there is transparency in the probate process. For example, an inventory can be required or requested if there is an account. Also, probate administration can be independent because the administrator can make decisions without notifying everyone, getting their consent, or having the judge approve things.
However, an heir can ask for Supervised Administration, which means that everything is more transparent. To do this, there needs to be a written inventory of all the assets that must go before the judge. In this case, every heir has a right to review, approve, or question the process. Then there needs to be a final accounting which all the heirs support by signing a receipt of approval.
For more information on the Probate Process In The State Of Illinois, a free initial consultation is your next step. Then, get the information and legal answers you seek today by calling (312) 900-9818.