Lake County Probate Attorney
An Overview of the Probate Process
Probate is often the least convenient, most expensive option for passing assets on after death.
So what exactly does happen in the probate process? One of the first things is that the probate court will make a determination on whether a decedent's will is valid. If the court then decides that the will is valid, an executor (typically someone named in the will) will carry out the decedent's wishes under the probate court's supervision. In Illinois, a will can provide for "Independent" administration, simplifying the process to as little as two court appearances. If there is no will, an administrator will be appointed by the court.
Next, the executor will go about the business of gathering and accounting for the estate's assets. After settling any legitimate claims against the estate and paying off the decedent's outstanding debts - the executor will then distribute whatever is left to specified beneficiaries. If there is no will, intestate heirs may have to be identified and located.
The executor is the person named by the decedent in the will to administer the estate. The executor has many important functions to complete, including:
- File the will
- Collect, inventory and protect estate
- Notify heirs, beneficiaries and known creditors
- Publish notice of death to allow unknown creditors to make claims against the estate
- Pay all debts and expenses of estate
- File taxes of estate
- Establish testamentary trusts, if any
- Distribute estate to beneficiaries
- Close estate
The executor owes fiduciary duties to anyone who has an interest in the estate. This means that the executor owes a duty of loyalty and must act in the best interests of the estate. If the executor mismanages estate assets and causes the estate to lose value, he or she can be held liable for these actions and may have to repay the estate the amount of the lost value.
Preserving Estate Assets
An important but sometimes neglected responsibility in administering an estate is to look for opportunities to preserve assets for distribution. Reducing taxes is one way that an estate can retain more of its wealth for the decedent's heirs. Some of the ways to accomplish this are:
- Consider whether administration expenses and casualty losses should be reported on the estate tax return or on the estate's income tax return
- Consider whether there are income tax savings opportunities on the decedent's final return (such as whether or not a joint income tax return should be filed with the surviving spouse).
- Consider whether assets should be valued at the date of the decedent's death or six months later (or, if assets have been distributed prior to six months after the decedent's death, the date of the disposition of the assets)
Probate can be an expensive, drawn-out process, especially for beneficiaries who may have to wait anywhere from one to two years to receive the property left to them in the will. There are certain types of assets that do not have to go through probate and become available to the beneficiaries upon death of the decedent. These generally include:
- Property owned in joint tenancy with rights of survivorship, if the joint tenant survives you.
- Payable on Death POD)/Transfer on Death (TOD) bank, brokerage and mutual fund accounts paid to a named beneficiary if the beneficiary is living at the time of your death
- Life insurance proceeds paid to a named beneficiary if the beneficiary is living at the time of your death
- IRAs, 401(k)s, and other tax-deferred retirement plan assets paid to a named beneficiary if the beneficiary is living at the time of your death.
State Intestacy Laws
The laws of intestacy apply when you die with "probate" assets (not in trust, no surviving joint tenant, no effective beneficiary designation). Each state is different in how these situations are handled. Read more on Intestacy Laws.
Small Estate Affidavit
For estates who's values are under $100,000, a Small Estate Affidavit may be a consideration.
If you live in the Chicago or Lake County area, including Northbrook, Skokie, Highland Park, and Winnetka, and need an experienced probate or trust administration attorney, please contact Matlin and Associates.
- Estate Planning
- Probate & Trust Administration