Campbell, Black, Carnine
Hedin, Ballard & McDonald

Probate

Probate is the process by which the probate court, in conjunction with the executor or administrator, determines who receives the property and assets of the deceased. Despite potential misconceptions, it is rare that  a deceased's estate pass to the government.

Probate in Illinois will be eased by proper representation.  Probate can be a difficult process considering the tasks that often accompany the death of a loved one, the pressure of dealing with assets and debts, discovering financial and personal information, and dealing with relations among family members.

Generally, an estate consists of assets titled in the decedent's name, assets payable to a the decedent's state, and real property held with another person. The decedent, may not have left a will, may have left a  will, or may even have left more than one will.  If the decedent dies without leaving a will, they are said to have died "intestate" and Illinois law lists the statutory manner of distribution. If the decedent left a will, the decedent is known as a "testator".  Illinois requires that all originals wills be filed and includes penalties for hiding or concealing a will.

To begin the process, a legally suitable person will file a petition with the court. Notices must be sent to, or proper consents received from, all heirs and potential beneficiaries.  The named executor in a  will, or an interested party if the deceased dies intestate, will be declared the personal representative of the estate by the court. "Letters of Office" will issue
to the personal representative granting the representative the authority to act on behalf of the estate.

The representative's duties are to collect, preserve, and manage the estate while also paying its debts and addressing asset distribution as directed by the will or the intestacy statute.  In addition to keeping  a record of all transactions taken pursuant to the estate, a personal representative must submit an accounting and inventory to the court and/or the heirs.

Illinois requires that notice of an estate's opening be given to the public, usually through publication in a newspaper, so that creditors, if any, may make their claims against the estate. Illinois also requires that the personal representative to notify creditors who may be reasonably ascertained. Thus, the representative is under a duty to thoroughly review the papers and effects of the decedent to discover creditors who  would be entitled to personal notification rather that through newspaper publication.

In Illinois, if the total assets of the decedent exceed $50,000, an estate must be opened. A simple estate will remain open for a minimum of six months from the date the executor is appointed. Often, no claims are  filed and the estate can be closed shortly after the expiration of the statutory periods. There are certain tax returns that must be filed during the
administration of the estate and the estate must file a final income tax return for the decedent
for the final year of that person's life.

After all claims are paid and accountings are completed, the representative can distribute the assets of the estate and close the estate. The estate process can last from 6 months to many years, all depending on the  size and complexity of the estate, and the cooperation of the heirs.