Probate is the court-supervised process of authenticating the last will and testament of a deceased person. Laws can vary by state, so we will focus on probate law in Illinois.
Probate is not always required after someone dies. According to probate law in Illinois:
Probate is generally necessary if there are assets that the deceased person owned solely (not jointly)
If combined probate assets are worth more than $100,000
During probate, an executor is named to oversee the probate proceedings and gather all of the necessary documents. The probate process is started by filing a petition with the court in the county that the deceased person last resided. If there is a will, the court will appoint an executor. If there is no will, the court will appoint an administrator to oversee the process. Executors and administrators may also be referred to as personal representatives.
The executor must:
Prove in court that the will is valid
Identify and inventory assets
Pay any debts and taxes
Distribute remaining property as the will directs (or state law if there is no will)
Any heirs named in the will are informed by the court of the probate proceedings. Also, any creditors are notified of the proceedings. Creditors have six months to file claims.
Executors can be held liable for mismanaging an estate. It’s recommended that an executor work with an attorney that understands probate law in Illinois.
Most probate cases take less than a year, and usually that’s because all the paperwork can be time consuming. However, if there are issues with the will it can make the probate process go on much longer. This might be someone contesting a will, confusing language in the will, or accusations against the executor of the will.
To close an estate, the executor must file a final report with the court accounting for all assets, including debts paid, inheritances paid out, and income generated by the estate.
Is Probate Always Necessary?
There are many assets that do not require probate. Assets held in a trust typically don’t have to go through probate. Also, any assets held jointly or with a direct beneficiary designation avoid the probate process.
If assets are under $100,000 and do not contain any real estate, a small estate affidavit can be filed in court. Heirs use this affidavit to claim their inheritance. For example, if you are inheriting a bank account you can present the affidavit and a death certificate to the bank.
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