The Illinois Probate Process

THE ILLINOIS PROBATE PROCESS

ROBERT N. NASH ILLINOIS ESTATE PLANNING ATTORNEY

“In the unlikely event that you manage to go through your entire life without ever being an interested party to the probate of someone else’s estate, you should still familiarize yourself with the probate process as it will be of benefit to you when you are planning your own estate.”

http://www.wealth-counselors.com/services/estate-planning-services/

The Illinois Probate Process www.nashbeanford.com 2

At some point in your life you will likely be involved in the probate of an estate.

You might be appointed as the Executor of someone’s estate, be a creditor of an

estate, or be a beneficiary of an estate. Regardless of the reason for your

involvement, if the estate is being probated in the State of Illinois it will be

important that you understand how the probate process works in Illinois.

In the unlikely event that you manage to go through your entire life without ever

being an interested party to the probate of someone else’s estate, you should

still familiarize yourself with the probate process as it will be of benefit to you

when you are planning your own estate.


WHAT IS PROBATE?

When you die you

will leave behind an

estate. Your estate

will consist of

everything you own,

including personal

and real property as

well as tangible and

intangible assets. All

of you property and

assets must be

accounted for and

eventually be

transferred to you

legal heirs or

designated

beneficiaries. The probate process evolved as a way to make sure that the

transfer of assets is accomplished in accordance with all applicable laws as well

as to ensure that all creditors of the estate, including Uncle Sam, are paid.

IS THE PROBATE PROCESS THE SAME IN ALL STATES?

Although the basic process is similar in all states, issues relating to wills, trusts,

and estates are governed primarily by state laws. For this reason, aspects of the


probate process, as well as the laws applicable to probate relates issues, can

vary somewhat from state to state.

IS THERE AN ALTERNATIVE TO FORMAL PROBATE?

In the State of Illinois, an estate may be able to avoid formal probate under

certain circumstances. To be eligible to use a “Small Estate Affidavit” the total

value of all estate assets cannot exceed $100,000. In addition, if there are

creditor disputes, or if someone challenges the validity of the Last Will and

Testament submitted for probate the estate will likely need to go through formal

probate.


TESTATE VS. INTESTATE ESTATES

When an individual leaves behind a valid Last Will and Testament the estate is

referred to as a “testate” estate. In that case, the decedent’s Will is used to

probate the estate, meaning the Will dictates what happens to the decedent’s

assets. When an individual dies without leaving behind a valid Last Will and

Testament the person is said to have died “intestate.” Assets owned by a

decedent who dies intestate will be distributed using the Illinois laws of intestate

succession, effectively meaning the State of Illinois decides what happens to the

estate assets.


WHAT IS THE DIFFERENCE BETWEEN AN EXECUTOR AND A

PERSONAL REPRESENTATIVE?

An Executor is someone who is appointed by the decedent in a Last Will and

Testament whereas a Personal Representative is someone who volunteers, or is

appointed by the court if no one volunteers, to administer the estate of a

decedent. For the most part, the duties and responsibilities of an Executor and a

Personal Representative are the same.


WHAT HAPPENS DURING FORMAL PROBATE?

Estate Assets–the Executor/PR of the estate must identify all estate

assets. Those assets must them be located, valued and inventoried for the

court. The Executor/PR must secure the assets and manage/maintain them

until the probate process is finished.

Creditors–notification must be given to all creditors of the estate shortly

after probate is opened. Creditors are then given an opportunity to file a

claims against the estate. Approved claims are paid out of estate assets.

Challenges to the Estate –if an interested party believes the Will

submitted to probate is not valid a Will contest may be filed. If that occurs,

the challenge must be litigated before probate may resume. If the

contestant prevails, the Will is declared invalid. The court then looks for

another valid Will to use for the probate of the estate. If no valid Will exists

the estate becomes an intestate estate.

Estate Taxes–all tax returns, including federal gift and estate taxes, must

be prepared and all taxes obligations paid before any assets may be

distributed to heirs or beneficiaries.

Distributing Assets -- finally, when taxes have been paid and all other

estate business concluded the estate assets may be transferred to the

intended beneficiaries or heirs of the estate.


HOW LONG DOES PROBATE TAKE?

Because every estate is unique there is no way to determine how long the

probate of a specific estate will take; however, the probate of even a relatively

simple estate must remain open for at least six months because the law allows

creditors of the estate six months in which to file a claim against the estate. As a

general rule, the more complex and valuable the estate assets are, the longer it

will take to probate an estate. Large estates, of estates in which a Will contest

has been filed, can easily take well over a year to probate.

If you find yourself involved in the probate of an estate and have specific

questions or concerns consult an experienced Illinois estate planning attorney for

advice and guidance.


REFERENCES:

Illinois Legal Aid, How Do I Settle an Estate after Someone Dies?

NOLO, Illinois Probate: An Overview

Cook County Illinois, Probate Division

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=2414

http://www.nolo.com/legal-encyclopedia/illinois-probate-an-overview.html

http://www.cookcountyclerkofcourt.org/?section=DDPage&DDPage=4200


About the Author

Robert N. Nash

Robert N. Nash is a partner in the law firm of Nash Nash Bean & Ford, LLP. The law firm has

offices in Geneseo and Moline, Illinois and conference facilities available throughout

Northwestern Illinois. Mr. Nash chose the estate and business planning arena because he

believes it provides a positive force in his clients’ lives. He practices preventative, rather

than remedial law. Robert Nash focuses on all aspects of estate planning, including estate,

gift and income taxes, trust and probate administration, real estate, and business.

Nash Nash Bean & Ford, LLP www.nashbeanford.com

Geneseo

445 US Highway 6 East Geneseo, IL 61254

Phone: (309) 944-2188 Fax: (309) 944-3960

Moline

5030 38th Avenue, Suite 2 Moline, IL 61265

Phone: (309) 762-9368 Fax: (309) 944-3960

http://www.nashbeanford.com/

The Illinois Probate Process

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