Lets talk about Probate

All attempts are made to provide accurate information. However, nothing contained herein should be relied upon as legal advice or legal authority. Nothing contained herein should be substituted for the advice of competent legal counsel.

Probate simply means to prove your will and settle your probate estate (assets that do not pass by reason of law or contract, i.e., life insurance, joint property, etc., your “estate” ) in a court of law. A judge makes sure that your heirs are notified, your debts and taxes are paid, and your estate is distributed according to your will (if you made a will), or if you die without a will (intestate) according to the laws of intestacy. There are four probate options available to settle your estate in Illinois. The option available to you is determined by the value of your estate, whether real estate is owned by your estate, and whether your heirs or legatees are satisfied with the administration of your estate. The costs involved depend on how much time is spent on settling your estate. If your affairs are in order less time is needed to settle your estate. To reduce probate costs, keep accurate and up to date records of who your creditors, heirs, and legatees are and the locations of all assets in your estate.

Option #1. Small Estate Affidavit. If you own no real estate and the gross value of your estate is $50,000 or less, probate may altogether be avoided with a small estate affidavit. A small estate affidavit allows your personal representative to state under penalties of perjury that the statutory requirements for the affidavit are met and that your estate can then be distributed without formal probate proceedings.

Option #2. Summary Administration. Summary administration allows your estate to be distributed if it is $50,000 or less and a small estate affidavit cannot be used. For example, if a bank or other institution refuses to honor a small estate affidavit, summary administration may be used instead. Summary administration allows for the distribution of assets within 30 to 45 days of death if all interested parties are agreeable and fully aware of your estate.

With the consent and appearance of all heirs and legatees, much of the probate process may be accomplished during the first court appearance. If no one files claims or objections, the court orders the distribution of your estate.

However, few estates qualify for summary administration and even if they would, the following disadvantages outweigh the advantages and therefore, Independent Administration is recommended:

Option # 3. Independent Administration. Independent administration is the newest and most popular form of probate in Illinois and has been available since 1980. It removed the hassle and expense associated with the probate process and made probate in Illinois a viable alternative to a living trust. Unless an interested party objects or your will specifically forbids, independent administration may be used to settle your estate. It grants your legal representative significant powers and allows for the administration of your estate with minimal publicity and court involvement. In most circumstances only two court appearances are necessary (one to open your estate and one to close it). A judge makes sure that the terms of your will are complied with and that all your debts are paid. Best of all, creditors of your estate only have six months to file a claim (instead of two years under a living trust). The entire process should take 6-10 month and cost form $1,000 to $3,000.

Option #4. Supervised Administration. Supervised administration involves the probate court in all aspects of the administration of your estate and is most often associated with the “nightmare of probate." Supervised administration usually takes longer, is much more costly, and requires considerably more work by the attorney because issues are often contested.

Myth #1. Probate Is Very Expensive. Before January 1, 1980, probate in Illinois was indeed an expensive and cumbersome process because the only probate option available was “Supervised Administration.” Supervised administration means that for each and every matter, court approval is needed to administer your estate. Since attorneys are usually involved in the process, supervised administration can be a lengthy and expensive process.

On January 1, 1980, the legislature overhauled the Illinois Probate Act with the addition of “Independent Administration.” Independent administration alleviates the time and expense required in supervised administration by allowing the personal representative of the probate estate to administer the estate with minimal court involvement. What was once an expensive and time consuming nightmare was transformed into a relatively inexpensive straight-forth procedure. If everything goes according to plan, only two court appearances are necessary, creditors only have six months to file a claim, and a judge makes sure that the terms of your will are carried out. This is a tremendous benefit to you.

Myth #2. Probate Serves No Purpose. Quite the opposite is true. The court’s extensive experience in probate matters and probate procedures assure the proper administration of your estate. The court plays no favorites and makes sure that your wishes are respected for an orderly distribution of your estate. The statute of limitations begins to run and cuts off creditor claims in six months. Without probate, creditors of your estate have two years to file a claim.

Myth #3. Probate Means Assets Are Tied Up For A Long Time. The statutory minimum for creditor claims during independent or supervised administration is six months. This means that creditors who are notified by letter or publication only have six months to file a claim or are forever barred. Once the claims period is over, your assets may be distributed. This is a tremendous benefit to your estate because without probate, creditors have two years to file a claim against your estate.

Myth #4. Probate Is Public. Probate is as public as any other court matter. Whether your assets are held in a trust or by your estate, if litigation ensues your affairs will be part of the public record. However, only during supervised administration or by court order is an itemized inventory of your estate filed with the court.