What is Probate?
In Illinois and other states, probate is the legal procedure through which a person’s assets are transferred after their death. The process is supervised by a court of law and designed to protect anyone with a legal interest in the deceased person’s estate. Probate is used to distribute a decedent’s assets, not only to beneficiaries but also to creditors and taxing authorities.
Do All Estates Go Through Probate in Illinois?
Any Illinois estate that exceeds $100,000 in value must go through the probate process unless the property is subject to certain exemptions.
Some exemptions include
- Asset that are titled jointly with another individual
- Life insurance proceeds, and
- Any retirement funds where a beneficiary other than the deceased person’s estate was chosen.
Additionally, assets placed in a revocable living trust are not subject to the probate process.
Who Handles the Probate Process?
The probate process is usually handled by an executor (also called a personal representative) selected in advance by the decedent. If no executor was chosen, the court will generally appoint a relative, financial institution, or trust company to fulfill the role.
What Happens During Probate?
In Illinois, an executor will normally:
- Identify all of the assets of the person who dies
- Manage those assets throughout the probate process
- Pay any outstanding debts, taxes or estate expenses
- Make any distributions that are required by state law, and
- Distribute any remaining assets to the decedent’s heirs or designees
If you are the executor of an estate and find it to be overwhelming, we invite you to request a probate or after death consultation with one of our experienced attorneys.
How Do You File a Will in Illinois?
You must file the original copy of the Will or codecil with the Probate Court in the county where probate is taking place. After the Will is filed, it becomes public record and may be viewed or a copy can be requested by the general public.
Supervised vs Independent Probate
Illinois, the probate process may be either independent or supervised.
- If the way in which an estate will be distributed is contested, a supervised probate process can be used.
- If an estate goes through supervised probate, the decedent’s executor should be represented by an attorney.
When an estate is probated in an informal, independent manner, however, it is also a good idea for an executor to consult with a lawyer experienced in handling such cases. It is also advisable to have an attorney attend any independent probate hearings.
How Much Does Probate Cost?
Generally, any probate costs are paid for by the estate. Costs must also be approved by a court if the assets are distributed through a supervised probate process. State and federal income taxes and any required estate taxes will also be paid from a decedent’s estate.
In 2019, up to $11.4 million in assets are exempt from the federal estate tax and up to $4 million in assets are exempt from the Illinois estate tax. That number for federal taxes is scheduled to be reduced back to about $6 million in 2026. Additionally, assets passing to a surviving spouse will normally be exempt from estate tax.
How Long Does Probate Take in Illinois?
On average, probate in Illinois takes no less than twelve months. The probate process must allow time for creditors to be notified, filing of required income tax returns, and the resolution of any disputes. Creditors must file any claims against the estate within six months of notification. Once the six-month period has passed, creditors are prohibited from making claims against the estate.
What Expenses Must Be Paid in Probate?
Funeral costs have priority in settling a probate case.
Then come taxing authorities, secured creditors, and unsecured creditors who have made a claim.
Finally, the beneficiaries get to have what is left.
Careful advance planning, including the use of living trusts, may reduce or eliminate the need for your loved ones to wait for the probate process to conclude.
We're Here to Help You
At Estate Law Partners, LLC, our hardworking attorneys are available to assist you with all of your estate related needs. If you would like to speak with one of our attorneys regarding your probate or trust administration needs, we invite you to request a consultation.