Probate in Illinois

Michael Brennan • December 18, 2017

Here's what happens when a loved one dies.

When a family member passes away there are often more questions than answers. Naturally, some of those questions are about what needs to be done in order to transfer the deceased individual's assets and property to loved ones, friends or charities. Depending on what the deceased individual owned at the time he or she passed away it may be necessary to go through probate.

What is Probate?

Probate is a legal process that accomplishes three main goals. Probate involves a) collecting all of the deceased individual’s (or decedent as he or she is commonly referred) assets, b) determining and paying the decedent’s debts, if appropriate, and c) distributing the remaining assets to the individuals and entities named in the will , or if there is no will, then according to state intestacy laws. The assets that are included in the probate process depend on how they were owned during the decedent’s life, but generally the probate estate does not include jointly held property, property held in trust, life insurance, and most retirement accounts. These assets are not subject to probate which means that they can be transferred without supervision of or notice to the court.

Is probate necessary?

Whether probate is necessary upon the death of a decedent depends on the state laws of the place of residence of the decedent and at times the place where the decedent’s property is located. It also depends on the decedent’s assets and the value of the probate estate. For example, in Illinois probate is typically necessary if the probatable assets (remember, this doesn’t include the items listed above) is greater than $100,000 or it includes real estate. Estates that are smaller than $100,000 without any substantial outstanding debts may be settled by using a much simpler procedure. In Illinois, that is accomplished through a small estate affidavit. An attorney will help you determine which procedure may be appropriate.

I am named as the executor in the decedent’s will. What do I need to do?

If you are in possession of the decedent’s will, you are legally required to file the will with the court in the county where the decedent resided within 30 days of death. This does not start the probate process. It is merely a legal requirement so that there is a record of the will. In the event you and your attorney determine it is not in everyone’s best interest to probate the estate, creditors of the decedent may open the process on their own if they chose to do so.

I filed the will with the court, now what?

Once the will is filed with the court, the next step is to meet with a probate attorney. The probate process begins with scheduling a consultation with a probate attorney. Typically at the consultation, the attorney will collect a number of documents, ask questions and collect personal information that will enable him or her to determine appropriate next steps. The attorney will typically request for you to bring the following documents with you to the consultation:

► Decedent’s will

► Copies of the death certificate

► Other estate planning documents, such as trust documents and will codicils (amendments)

► Copies of the decedent’s most recent income tax returns

► Personal information of the decedent like social security number, full address, etc.

► Family information including a list of family members, their social security numbers, full mailing addresses, etc.

► A list of the decedent’s assets, including bank accounts, retirement accounts, insurance policies, real estate deeds, and a list of personal property

► Debts like a mortgage, credit card bills, unpaid taxes, other loans

► Whether the decedent is a party to any lawsuits or potential lawsuits that may arise during administration of the estate.

The attorney will ask you questions about the decedent and the family. For example, he or she may want to know about the relationships the decedent had with family, whether all family members are known to you, whether there were previous marriages or children of the decedent and whether the will has been filed with the court.

The attorney’s job at this point in the process is to determine a) whether probate is necessary, b) whether you have standing to open probate (either by being named executor in the will or due to your relationship with the decedent), and c) the next steps that need to be taken.

The decedent had a will, but it does not name me as the executor. Can I probate the estate?

Typically if there is a valid will naming an executor, that executor is the only individual with standing to open probate. So, if that is someone else, you should encourage that person to meet with the attorney. If there is no will, then state law permits a number of people to open probate including the decedent’s spouse or children.

What happens if the attorney and I determine that a formal probate is necessary?

After the initial consultation with the attorney, if it is determined that a formal probate is necessary, then you and the attorney will sign an engagement letter outlining the attorney’s responsibilities and fees for which the estate will be responsible. Once an engagement letter is signed, the executor must file a petition to probate the estate and be formally appointed as the executor. Several other documents will likely need to be filed with the petition.

Once the court has accepted the petition and appointed the executor, the executor will be required to send notices to a number of people, including those named in the will and to heirs of the decedent. Additionally, if there are known creditors or the decedent, the executor must send notice to those creditors. Potential unknown creditors can be served notice through a publication in a newspaper in the county where the probate was opened.

Once notice is provided to creditors, the clock begins to toll. From then on, in Illinois known creditors have six months to file a claim against the estate while unknown creditors have two years. During the claim period, personal property can typically be distributed, but other assets should be held until the end of the claim period, or until the probate is closed, if closed by the attorney at an earlier date.

Once the claims period has passed, a final account and report must be prepared and filed with the court. Once approved, the court will close the probate and the estate assets may be distributed to the appropriate beneficiaries.

Sounds great, so how long should I expect the whole probate process to take?

The timeline for a complete probate depends on a number of factors and whether complications, like a potential beneficiary challenging the validity of the will or trouble tracking down a beneficiary, arise. However, from filing the petition to open probate to closing, a typical timeframe for uncontested probate matters in Illinois is between 8 -12 months.

What is the attorney’s role in the probate process?

You and your attorney will agree on the scope of services to be provided. Depending on your preferences and comfort level, you may decide to take on the majority of tasks and keep costs down. Or, you may determine that the attorney is better suited to do most of the work for a higher fee. Each case is different, but generally speaking, you should look for your attorney to assist with admitting the will to probate and having you named executor, assistance with completing an inventory of all estate assets, preparation of required reports, notices, filings and accountings and general advice throughout the process. You may decide to make formal appearances at hearings on your own behalf or enlist your attorney’s services in that department as well. In addition, tax filings likely will need to be made. Whether you decide to complete them, hire an accountant or your attorney to assist is up to you.

How much does probate cost?

Probate costs vary by county and law firm. Court costs will be part of any probate and can typically be determined by calling the clerk or court’s office in the county where probate will occur. Attorney’s fees will vary depending on the size and complexity of administering the estate, the time involved, whether there are any contested matters and how much the scope of the attorney’s involvement is limited. Generally speaking, expect anywhere from $500-$1,500 in fees and a few thousand dollars in attorney’s fees. It’s a good idea to negotiate a flat rate with your attorney at the beginning of the representation so you know what to expect when the matter is concluded.

Michael F. Brennan is an attorney at the Virtual Attorney™ a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning and small business legal needs. He can be reached at michael.brennan@mfblegal.com with questions or comments, or check out his website at www.thevirtualattorney.com .

The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For specific legal advice regarding a specific legal issue please contact me or another attorney for assistance.

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Electronic Wills are now an option. The new law defines an electronic will as simply “a will that is created and maintained as a tamper-evident electronic record.” What is “tamper-evident” exactly? Well, the statute defines it as a “feature of an electronic record by which any change to the electronic record is displayed.” So, popular document signature software like Docusign and Hellosign would do the trick. Individuals and Witnesses can now sign on multiple signature pages with one master document being compiled later on. If a platform like Docusign is not used to create and sign an electronic will, there is now an option to use multiple signature pages for the testator and witnesses. In practice, this enables a testator to sign a will while the witnesses watch over audio-video means, like Zoom. They can then each sign the signature page sitting with them at their physical location. 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To do so validly, the will must designate Illinois as the state of its execution, be signed by the testator or by some person at the testator’s direction and in their presence, and be attested to in the presence of the testator by two or more credible witnesses who are located in the United States at the time of execution. The change of the “presence” requirement is revolutionary, as “presence” now includes being in a different physical location from another person, but able to know the person is signing a document in real time using audio-video communication. Additional Documents, like Powers of Attorney can now be signed virtually Wills are not the only estate planning documents that require witness signatures. Powers of attorney and living wills are just as essential to creating a comprehensive estate plan. Illinois’ Electronic Wills and Remote Witnesses Act also authorizes the witnessing of any document other than a will using audio-video communication. 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