Illinois Probate and Estate Administration

      The purposes of probate are: a) to determine the validity of the decedent's Will, b) to determine who will be responsible for administering the probate estate - an Executor if there is a Will or an Administrator if there is no Will, and c) to administer and settle the decedent's probate estate. Will contests must be initiated within six months of the Will being admitted to probate.
        Technically, probate also includes guardianship petitions and administration. This means that if someone becomes disabled such that they are unable to manage their affairs, and the trustee provisions of a Living Trust and the agency provisions of a power of attorney are insufficient to address the disabled person's needs and circumstances, then a guardianship petition may be filed in the probate court for the appointment of a guardian to provide needed assistance to the disabled individual. More on guardianships.
        The Administrator (or Executor) of the probate estate usually hires an attorney to act on his behalf and provide advise and counsel. Administration of the probate estate consists of settling claims against the estate, collecting and protecting estate assets, carrying out the provisions of the Will, and/or making distributions to the decedent's heirs according to a statutory formula in the absence of a Will (or appropriate provisions therein). Dying without a Will is called intestacy. For more on intestacy click here.
        The attorney can delegate tasks to the Administrator limited by 1) the time required to instruct and supervise the work of the Administrator, and 2) the attorney's need to protect against liability exposure from administration error and omission.
        The difficulty of administrating a particular estate increases with the complexity of the decedent's business affairs, the number of debtors and creditors, the number of legatees, heirs and other interested persons, the illiquidity of estate assets, the size of the estate, the need to file state and federal estate tax and fiduciary income tax returns, and any discord among family members.
        An estate tax return will have to be filed in the event the decedent had the right to possess, or benefit his estate or creditors, at the time of his death, more than $2,000,000 of property, including lifetime taxable gifts. Fiduciary returns are filed to capture tax on income earned by the probate estate before it is distributed to legatees, heirs and creditors.
        Anyone in possession of Will and codicil documents of a deceased Illinois resident must by law promptly arrange for their filing in the Circuit Court of the County of the decedent's last residence. Copies of filed documents should be retained. If Will documents are located in a safe deposit box Illinois has special provisions for accessing the box and filing in court any Will documents contained in the box.
        The following items should be provided the attorney for the estate as soon as practicable:

        Additional documents may be required by the attorney depending on the particular circumstances. If a decedent leaves property subject to probate* not exceeding $100,000 in value the attorney can prepare a small estate affidavit which permits collection of the decedent's property from debtors, property custodians, and transfer agents. In this case formal probate is not required. *Property not subject to probate includes life insurance and retirement plan death benefits (unless there is no beneficiary, or the beneficiary is listed as the "estate"), payment on death accounts, transfer on death accounts, life estates, jointly held property with right of survivorship, and certain contractual (including trust) beneficial interests.  Click here for more information on settling a small estate, and the small state affidavit procedure.
        On the other hand, if decedent's property subject to probate exceeds $100,000 it will in most circumstances need to be probated. The first step after filing the Will is petitioning the Probate Court to have the Will admitted to probate and to issue letters of office (i.e., authority) to the Executor. If the decedent left no Will the petition would request issuance of letters of office to an heir or interested person - called the Administrator of the estate. Letters of office authorize collection of the decedent's assets, satisfying his debts, and otherwise settling the estate.
        Before letters of office are issued the Executor can arrange for the disposition of the decedent's remains and take such action as is necessary to preserve the estate. One advantage of a Will vs. intestacy is you can specify that your representative (the Executor) is to serve without bond or surety. In many cases intestate estates incur bond/surety premiums to protect creditors, rightful heirs and legatees against error and omission in the administration of the estate.
        It takes a minimum of six months from the date an Administrator is appointed to probate an estate. During this period claims of creditors can be asserted against the estate. If heirs and/or legatees need funds from the estate before it is closed various measures in some cases can be employed to accommodate them. In estates large enough to require the filing of an estate tax return the estate will typically remain open for six to nine months after the return is filed - the length of time it takes the IRS to issue an estate tax closing letter.
        If you are a beneficiary under a Will, or an heir of an intestate estate, you have a right to see all documents pertaining to the probate estate. Within 14 days after the Will is admitted to probate and/or letters of office have been issued the Executor or Administrator, or his attorney, is required to mail all known heirs and beneficiaries a copy of the Will, the petition to admit the Will and/or issue letters of office, a copy of the court order granting the petition, and a notice of rights to contest the validity of the Will and request supervised administration. Prior to the hearing to admit the Will beneficiaries and heirs are often asked to sign a waiver of such notice rights.
        Supervised administration is where the court takes a more active role in overseeing the administration of the estate. Most estates begin administration independently; then if one or more heirs or beneficiaries feels the Executor or Administrator is not adequately representing their interests they file a motion, usually through an attorney, requesting supervised administration. To determine whether you are an heir click here.
        With supervised administration the Executor/Administrator, or his attorney, is required to file in court an inventory of the decedent's assets within 60 days after issuance of his letters of office. Under independent administration the inventory only has to be provided 30 days prior to furnishing a final account to all interested persons. The final account lists all estate transactions, in detail or summary form, made by the Executor/Administrator.
        The surviving spouse is allowed $10,000 of the estate proceeds, plus $5,000 for each minor or adult disabled child of the decedent who lived with the surviving spouse at the time of death, exempt from enforcement of any judgment, garnishment or attachment held by the Executor or Administrator. If such children did not live with the surviving spouse at the time of death then the above amounts are payable to a care-giving adult for the benefit of the children, except that if the decedent left a surviving spouse the $10,000 share would go to her.
        These amounts are minimums required by statute, and in the case of independent administration are payable by the Executor or Administrator without court approval. Court approval for additional amounts can be petitioned for if needed for the proper support of the surviving spouse and children during the period of nine months from the date of death.
        For more details on the probate process visit your County law library and ask the reference librarian to point you to the Illinois Probate Code. If you need a copy of a Will for an Illinois decedent contact the Clerk of the Circuit Court of the County of the decedent's last residence. If you are an heir, legatee or beneficiary of an Illinois trust or estate, most big city law libraries throughout the country have current copies of the Illinois Probate Code on their shelves, and reference librarians available for assistance. At some point you may need an attorney, but if you have the time, there are some answers that can be answered through the published materials directly.
        If you decide you need the assistance of an attorney and you are a beneficiary of a trust or estate, or think you may have a claim against an estate, you will need to provide an initial retainer to permit an attorney to investigate the facts of your particular situation before any conclusions can be drawn as to what your options and prospects are. If you are responsible for settling someone else's estate either because you have been named as executor in a will, or you are in possession of a decedent's personal and business records, you may not need to furnish a retainer if the decedent left sufficient assets to cover the cost of administering the estate.

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