How Does the Probate Process Work?

Gavel and Small Model House on Wooden Table.The probate process in Illinois is a legal procedure supervised by the court that is sometimes needed after the death of a loved one. It is used to make it absolutely clear who will inherit the property of the deceased and to make sure that all of their taxes and debts are paid. The executor of the estate usually handles probate. This person must prove in court that the will of the deceased is valid. They must identify and take inventory of the assets, have the assets appraised, pay the taxes and debts, and distribute what is left as the will dictates.

Is Probate Necessary?

Whether probate is required or not really depends on what assets there are and how the deceased person held the title to those assets. The validity of the will does not necessarily influence the need for probate. Usually, a formal probate hearing is required in Illinois if the deceased person had sole ownership of assets, and if all of the assets combined are worth more than $100,000.

There are some assets that do not need to go through probate, including:

  • Assets that are held in trust,
  • Assets that are owned jointly,
  • Assets that are subject to beneficiary designation,
  • And real estate that is subject to a transfer-of-death deed in Illinois.

Affidavits for Small Estates

When the total value of an estate is less than $100,000 and does not include any real estate, a formal probate hearing is not required. Whoever inherits the estate is able to use a simple affidavit (sworn statement) to claim the inheritance.

A standard affidavit is a few pages long and all you have to do is fill in the blanks. You just need to provide the basic information about the person who passed away and state that there is no probate hearing in process and the funeral expenses have been paid in full. It must also say if there was a will. If there is a will, you must provide a copy along with your affidavit.

Formal Proceedings for Probate in Illinois

Probate cases in Illinois are handled by the Circuit Court in the county where the deceased person was living. The executor of the estate (as named in the will) is responsible initiating the probate process. If a will does not exist, someone will have to take responsibility and ask the court to appoint that person as “administrator” of the estate. The administrator will then do the same job as the executor.

To begin probate, the executor files the will with the court. If necessary, a probate case is opened by filing the appropriate documents. Generally, the executor hires a lawyer to draw up and file the proper papers. A notice about the hearing has to be sent to all the people named as heirs in the will. To inform creditors, a notice is published in the local paper.

Unless there is a problem with the will, which is a rare occurrence, the court will submit the will to probate and the person named in the will is then officially appointed as executor. The probate process gives the executor authority over assets. Most executors are granted “independent administration,” allowing actions without prior court approval. If the heirs are fighting, however, then “supervised administration” may be enforced and the executor must get court approval before any action is taken.

Debts and Assets

During probate, the executor has to take inventory of estate assets and safeguard them. It is sometimes necessary for the executor to sell some assets. The executor is responsible for taking assets or the money from the sale of assets to pay debts, such as funeral costs. The executor must also inform creditors of the probate case. The creditors have six months to file a claim. If they miss the deadline, they don’t get anything.

Tax Requirements

An estate in probate is taxable and separate from the person who passed away. The executor has to obtain a taxpayer ID number from the IRS for the estate. This is used to report income and deductions during the estate’s administration. Federal and state tax returns need to be filed for the estate.

For the year 2015, an Illinois estate tax return is due if the value of the estate is more than $4 million. A Federal estate tax might be due if the estate is valued at more than $5.43 million.

Contesting the Will

Probate cases are typically are finished in less than a year with the completion of all required paperwork. If the heirs fight about the assets, probate can take much longer and be much more costly. If a court battle erupts, it is usually over the execution of the will, confusing language in the will, claims from creditors, the executor being accused of wrongdoing, or someone claiming that the deceased person was influenced or did not have the mental faculties to write the will.

Estate Closing

In order to officially close the estate, the executor needs to file a final accounting document that shows how the assets were handled. It will list the assets, income that was generated by the estate, amounts paid for expenses and debts, any expenses paid for administration, and amounts that were distributed to heirs. The document will also show how the executor will distribute the rest of the estate property. When it is time to close the estate, the executor will submit a final report to the court and obtain receipts from the heirs who received assets.

When probate is necessary, the legal team at Sherer Law Offices can help you navigate the process and provide support if disputes arise. Plan ahead and hire an experienced probate attorney as soon as possible.

CONTACT Sherer Law Offices to schedule a legal consultation.

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