How many times have you overheard a discussion or read an article talking about avoiding probate. Then later, wondering what it involved and why should you want to avoid it? Probate is the legal process which divides and distributes a person’s assets after his or her death. The probate court will inventory the estate and distribute it to the heirs or beneficiaries of the deceased, after all debts are paid. A will must go through probate to be given effect. The term “probate” is derived from the Latin words “having been proved”. Through the legal process, the will is proved, or authenticated, the heirs are identified and the estate is distributed according to the will, after all taxes and debts are paid.
If there is no will, the assets of the deceased will be distributed according to the state’s laws of intestacy.
In Illinois, if an individual dies and has at least $100,000 in assets that do not automatically transfer to someone else, probate is necessary. This could include bank accounts, investments, vehicles, real property and personal property. This amount can vary from state to state.
So why would you want to avoid the probate process? Because the probate process can be lengthy, from a few months to over a year or more, depending on how complicated the estate is. The average probate case in Illinois is open for 12 months. Having a long drawn out probate battle can be expensive and result in substantial legal fees. Another primary reason to avoid the probate process is to avoid delay in the distribution of the assets of the estate, which are tied up during probate.
Also, if the will provides for trusts for children or grandchildren, that will require continued oversight by the probate court, an annual accounting and additional attorney fees.
In order to avoid the probate process, individuals in Illinois can establish a living or revocable trust, which will in effect own the assets of the estate. The living trust is one of the most popular vehicles for avoiding probate. It gives the individual who has a living trust the power to make alterations as desired, including complete revocation. Following this individual’s death, the named beneficiaries of the trust will then be distributed the assets of the estate, without having to go through probate.
The intricacies of estate planning and probate are areas of the law that deal with an individual’s assets and preserving them for their loved ones. This area of the law is highly specialized and anyone wishing to preserve their assets should seek the advice of an experienced estate planning an probate attorney. The attorneys at Estate Law Partners, LLC, have many years of experience helping clients create estate plans to avoid probate, and helping the loved ones of of those who didn’t plan before their death through the probate process. We invite you to request a consultation with our attorneys to discuss avoiding probate, or helping you take an estate through the probate process.