If you are here to learn about Illinois probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
That said, probate is a court-supervised procedure that helps ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. In Illinois, probate is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as directed by the will—or by the state law if there is no will.
In Illinois, if someone has $100,000 in total assets or owned real estate outside of a trust that was not owned jointly with the right of survivorship.
What's so bad about probate in Illinois... and what should I do next?
Many residents in Illinois have heard that probate can be a nightmare! As it tends to be very expensive, it's time-consuming and a public process. The easiest way to avoid the probate process is to plan, but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is probate started in Illinois?
Although any beneficiary or creditor can initiate probate, typically, the person named in the will as the Executor starts the process by filing the original will with the court clerk of the proper county and filing a Petition with the probate court. If there is no will, typically, a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the executor chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
How does the executor get paid?
Illinois law provides that the representative is entitled to reasonable compensation for his or her services.
Could I Be Held Personally Liable For Making a Mistake as an Executor?
Being an Executor is a big responsibility. The Illinois Probate Act of 1975 contains complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. Ultimately, an executor can be held personally liable for losses to the estate if he/she refuses to deliver the estate to the person authorized by law to receive it or for waste or misapplication of the estate.
My loved one had a trust...will we need to go through probate?
In most cases, no. If your loved one's assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process quickly without needing court involvement.
Unfortunately, many people with a Trust think they have it all taken care of. But time and again, family members of a recently passed loved one come into my office, and they find out they are facing the frustration, expense, and delay of probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated, and often, their loved ones' assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and regularly review your plan and assets, so the planning you do now works as planned later.
It's why we do things so much differently than most other lawyers and law firms, here at Dynasty Law.
What Assets are Subject to Probate?
Assets owned solely in the deceased person's name are subject to probate. Assets that pass by means of title, such as real estate titled “Joint Tenants with Right of Survivorship” or bank accounts titled “Transfer On Death,” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is the Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Illinois probate and intestate laws, which state that a person's estate will be distributed in the following order:
- If there is a surviving spouse, and a descendant [child], then 1/2 to surviving spouse & 1/2 to the child; if only one child;
- If, no surviving spouse, but there is a child, then the entire estate to the child;
- If no descendant (child), but there is a surviving spouse, then the entire estate is to the surviving spouse;
- If, no surviving spouse or descendant (child), then to parents and siblings of the deceased person is in equal shares.
How long does Probate take in Illinois?
The length of time of probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.
How much does Probate Cost?
The average cost to settle an estate in Illinois through probate court is $12,500. A very small estate with no challenges and a competent executor may be settled for $4,000.00 to $6,000.00.
If the will is contested, or there is significant debt or other disputes, the cost to settle an estate can be significantly higher and includes court fees, executor fees, attorney fees, and other costs.
The Personal Representative (i.e. Executor or Administrator) is also entitled to the statutory fee for their services. The Illinois Probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees.
Getting Help: choosing the right attorney for your probate case.
Choosing your attorney wisely is the best way to ensure your probate is done right. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Don't choose a lawyer who does probate as a sideline because these lawyers often blunder, causing real problems for their clients. Their cases often take longer than those handled by experienced probate lawyers.
You don't have to use the attorney who prepared the Will either! Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.
Choosing your probate or trust lawyer is one of your most important decisions. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact Dynasty Law for a complimentary post-death estate review
If you're ready to start the probate process after the passing of a loved one, please contact Dynasty Law at 312-248-4304 or use this link to schedule a complimentary 15-minute consultation to help determine your next best steps. We are here in service to make this all as easy as possible for you.
During this appointment, we will answer your probate questions and guide you and your family through the next best steps. We are committed to helping you administer your loved one's estate quickly and efficiently. We look forward to relieving any administrative or legal burdens you may face during this time of loss.