PROBATE LAWYER SCHAUMBURG, IL
Probate is the legal process by which a deceased person’s heirs receive assets and outstanding debts and taxes are settled with funds from the deceased person’s estate. Virtually all people in Illinois would prefer not to have anything to do with the probate process, and many smaller estates may be distributed through small estate affidavits that do not require legal representation.
All of that said, the rules surrounding probate can be very confusing and it can be wise for a person to work with a Schaumburg probate attorney simply to ensure that they are doing everything they are supposed to do. It can also be important for executors to retain legal counsel because they can become liable for errors they make when distributing property or paying off certain debts.
When Probate is Necessary in Illinois
An executor is the person who is listed in a will as the individual whom a decedent wants to administer their property and settle their debts to assure that the will and intent of the decedent be fulfilled. An executor must gather all necessary assets, documents, and bills to assure that every debt is paid and the remaining properties go to the people who are specifically listed in a decedent’s will.
A formal probate court proceeding is required in Illinois only if there are assets that a deceased person owned solely and all of the probate assets are worth more than $100,000. If the total value of an estate is less than $100,000 and contains no real estate, a formal probate court proceeding will not be necessary under 755 Illinois Compiled Statute (ILCS) § 5/25-1.
For cases that do not require probate, people inheriting assets use simple affidavits (sworn statements) to claim their inheritances. A standard affidavit is a fill-in-the-blank form that is not more than a few pages.
An affidavit may state whether or not there is a will, and when there is a will, an inheritor will present a copy of the will along with the affidavit. Statements will be signed under penalty of perjury.
Responsibilities Of An Executor
Probate cases in Illinois are handled by Circuit Courts for the county in which a deceased person was living. It will be the responsibility of the person named in a deceased person’s will as the executor of the estate, but when there is no will, a person will have to ask a court to be appointed as the administrator of the estate.
Under 755 Illinois Compiled Statute (ILCS) § 5/6-3, a person must either institute a proceeding to have a will admitted to probate in the court of the proper county or declare their refusal to act as executor within 30 days after they acquire knowledge that they are named as the executor of a will of a deceased person. If a person fails to do so, except for good cause shown, a court on its motion or on the petition of any interested person can give the person the right to act as executor. Letters of office could be then issued by a court as if the person so named were disqualified to act as executor.
When 30 days have elapsed since the death of a testator and no petition has been filed to admit their will to probate, a court can proceed to probate the will without the filing of a petition, unless it appears to the court that probate thereof is unnecessary and failure to probate it will not prejudice the rights of any interested person. Notice of such hearing on the admission of the will to probate will be given to the persons in interest as the court directs.
An executor files a will with a local court and, when necessary, opens a probate case by filing several documents. Most executors hire attorneys specifically to help them file the appropriate papers.
Notice of a proceeding must be sent to a deceased person’s heirs, the people who will inherit in the absence of a will, even when they are not named in a will. Notice must also be published in a local newspaper to alert creditors.
An executor may also have to post a bond unless a will waives this requirement. A bond is a sort of insurance policy designed to protect an estate from losses caused by an executor.
A court usually admits a document to probate and appoints a person named by a will to serve as an executor, giving them authority over estate assets. Many probate cases are conducted under independent administration, which lets executors take most actions without court approval under 755 ILCS § 5/28-1.
Under supervised administration, a court must approve most actions before an executor takes them, but supervised administration typically relates to cases in which heirs have disputes in court. An executor must publish notice of a probate case to inform creditors, and directly notify all known creditors, with creditors having only six months to file claims.
A probate estate will also be a taxpaying entity, and an executor must get a taxpayer ID number from the Internal Revenue Service (IRS) for the estate to report income and gain (and deductions) during the administration of the estate. State and federal income tax returns (IRS Form 1041 and Illinois Department of Revenue form IL-1041) must be filed for the estate.
An Illinois estate tax return will also be required when an estate has a value of over $4 million. Federal estate tax returns are also due when estates are worth more than $12.92 million.
A probate case can typically be settled in less than a year, but it is not uncommon for certain heirs to possibly have disputes that can stretch the cases out for much longer periods of time. When there are issues with a will, they often relate to people claiming that other people unduly influenced deceased people, deceased people not having the mental capacity to formulate wills, creditor claims, or other accusations of wrongdoing by executors.
Assets That Go Through Probate
Anything included in a will is handled by probate, and any share a deceased person had in assets titled to multiple people goes through probate. Real estate is commonly titled as tenants-in-common property, and bank accounts, bonds, or stocks can be other common kinds of tenants-in-common property.
When an asset has no named beneficiary or had a named beneficiary who passed away, it will be considered intestate unless it is handled another way, like a trust. There are many types of assets that will not have to pass through probate.
Anything a person owns jointly with another person will automatically be passed on to the other person if they are still alive. All assets with named beneficiaries are automatically passed on to the named beneficiaries.
Illinois also allows probate estates to be handled outside of probate when there is no real estate, the total value of probate assets is less than $100,000, no one has petitioned for probate, and there are no disputes regarding heirship. Property held in a trust is also not considered to be part of a person’s estate, so it will typically not pass through probate.
Certain assets like accounts or real estate may be transferrable upon death. As long as beneficiaries are still alive, such assets can be disbursed outside of probate.
Contact Our Schaumburg Probate Lawyers
Probate can often be a messy and confusing time for most people who are involved in the process, and you will want to be sure that you seek legal representation so you can ensure that everything is being handled properly. The Law Office of Fedor Kozlov, P.C., can offer an entire team of skilled probate lawyers who will be able to represent your interests in court and help you navigate the entire process.
Our firm has offices in Schaumburg and Chicago, but we serve clients in communities throughout Cook County, DuPage County, and the greater Chicagoland area. Call (847) 241-1299 or contact our Schaumburg probate lawyer online to schedule a consultation.