Probate is a trying process because of the circumstances surrounding it. These usually include:
- The death of a loved one
- The pressure of dealing with large amounts of assets
- The difficulty in rounding up and discovering financial and personal information of the deceased
- Dealing with the delicate relations among various family members
All of these strains and burdens may be eased or even erased with the help of experienced probate lawyers like The Law Offices of Thaddeus M. Bond, Jr. & Associates, P.C.
What is probate?
Probate is the process by which the probate court, with the help of a personal representative (the executor or administrator), determines who receives the property and assets of the deceased person. This would be heirs, creditors, or legatees (persons named in wills), etc. Probate also makes sure that the proper, entitled persons receive the property and assets.
There may or may not be a will
The person who died, known as the decedent, may or may not have left a will. If the decedent left a will, he or she is then called a "testator".
- Illinois Law requires that, If there is a will, all original wills be filed with the Clerk of the Court of the proper county.
- If there is not a will, the estate is known as an intestate estate and the law of "intestate succession" will decide the disposition of assets. In such cases, the Illinois legislature has set a statutory manner of distribution that will be followed.
Whether or not there is a will, a person wanting to open probate will file a petition with the court to open an estate.
- For the probate of a will, notice is generally sent after the will is admitted to probate and the executor is granted letters of office.
- For an intestate estate, it is required by law that notices be sent to all legatees and heirs. If this is not done, the appointment of an administrator and their waiver and consent to probate must be obtained.
The personal representative
Next, unless there is a will contest or formal proof of will, the named executor in a will (or in the case of intestacy some interested party) will be named the personal representative of the estate by the probate court.
The representative's duties are quite simple. They are basically:
- To collect and preserve the assets of the estate
- To pay the debts and taxes
- To distribute the remaining assets as directed by the last will or the intestacy statute
The task may be daunting for large estates or people not experienced with financial matters. A personal representative must keep an accounting of the records of all transactions involving the estate, and must prepare an inventory to present either to the court or to the heirs, depending on the type of administration.
Once the estate is open, the court will issue "Letters of Office" to the personal representative which, combined with a death certificate, will let the representative to act on behalf of the estate.
Claims must be filed by notified creditors during the "claim period" or their claim will not be allowed. A simple estate will be open for at least six months from the date the executor is named and notices are mailed to creditors. Often, no claims are filed and the estate can be closed.
After all claims are paid and the accounting and inventory are completed, the representative will distribute the assets of the estate as per the will, collect receipts from those person's receiving shares of the estate, and close the probate estate. The process can take anywhere from nine months to several years, depending on the complexity and size of the estate.
The most common and most tragic problems encountered in Probate arise when family members do not get along, and attempt to bring family troubles or grudges into the already complex realm of Probate. In most cases, when siblings or legatees get along or decide to cooperate, probate can be a relatively painless process.
Other problems might also surface.
- There may be a will contest or challenge.
- In some cases, court proceedings may be necessary to recover estate property being held by a relative, or to recover possession of a family home from a relative living there.
- The person charged with administration of the estate may be less than truthful with the estate's heirs. In these cases especially, a prospective heir should seek the representation of a Probate attorney.
Probate can be complicated and should not be attempted without the assistance of experienced probate lawyers like The Law Offices of Thaddeus M. Bond, Jr. & Associates, P.C. Please call or email us today for a free initial consultation.
Our Lake County probate lawyers serve clients throughout Wisconsin and Illinois including Libertyville, Vernon Hills, Gurnee, Grayslake, and Waukegan.