Winnebago & Boone County Probate and Estate Administration Attorney
Although many individuals are familiar with the term probate, the process can also be complicated and confusing. Put simply, probate is a court-supervised proceeding that is required to manage a deceased person’s estate and distribute the assets to the rightful beneficiaries. The process can become more complex when questions are raised about the validity of a will or someone dies without a will in place. For this reason, if you have been named an executor in a loved one’s estate, it is crucial to enlist the services of an experienced attorney.
For over thirty-five years, Michael J. Smith, Attorney at Law has provided probate and estate adminsitration services to clients in Winnebago, Boone, Stephenson and Ogle Counties and throughout Northern Illinois. He is knowledgeable in the rules and customs of the local probate courts and works diligently to protect the rights of executors, administrators and beneficiaries.
Wills, Trusts and Estates
Today many individuals know that it is important to create an estate plan. While some may only require a will-based plan, there are other essential estate planning tools to consider, such as trusts, powers of attorney, and advance medical directives. Attorney Michael J. Smith routinely drafts estate planning documents, provides advice on how to avoid probate and mitigate estate tax consequences through the use of trusts, and also guides clients through probate proceedings.
Is Probate Necessary in Illinois?
Generally, when a person dies with a will in place, his or her estate may need to go through a probate proceeding. For estates valued at less than $100,000 that do not contain real estate, however, probate may not be necessary. Instead, the beneficiaries may only need to be provided with a small estate affidavit. Nonetheless, an experienced probate attorney should be consulted to ensure your rights are protected.
Additionally, certain property may not need to be probated, including:
- Property in which title was held jointly with right of survivorship
- Real estate subject to an Illinois transfer-on-death deed
- Property owned by a living trust
- Retirement accounts and life insurance policies with designated beneficiaries
- Savings and investment accounts with “pay on death” (POD) designations
If the value of the estate assets is greater than $100,000 or a will is not in place, however, a formal probate proceeding will likely be necessary.
Overview of the Probate Process in Illinois
Generally, probate proceedings are handled by the Circuit Court of the county in which the decedent lived, however, there are special probate divisions in larger counties. The individual named as the executor is responsible for carrying out the instructions of the will and distributing the estate assets to the beneficiaries. It is important to note that an executor is considered to be a fiduciary which means he or she in a position of trust with the beneficiaries. An executor must carry out his or her duties ethically, and can be held liable for any mistakes or misdeeds.
While each estate is different the duties of the executor generally include:
- Filing a petition with the probate court
- Notifying beneficiaries and heirs named in the will
- Inventorying and appraising estate assets
- Paying the decedent’s debts to creditors
- Filing the decedent’s final income taxes
- Paying any applicable estate taxes
- Distributing the remaining assets to the heirs
In order to initiate the proceeding, the individual named as executor must ask the probate court to be appointed. A hearing will be held to verify that this person is capable of acting in this capacity. The court will issue Letters Testamentary and officially open probate. This document gives the executor the legal authority to carry out his or her duties.
When a person dies without a will in place, or “intestate,” one of the heirs, usually a close relative, needs to ask the court to be appointed the estate administrator. The court will hold a hearing, issue Letters of Administration and open the proceeding. An estate administrator has similar duties and the same fiduciary obligations as an executor. However, the estate assets must be managed and distributed according to the intestacy laws of Illinois, which generally gives priority to spouses, children and parents.
Is an executor entitled to compensation?
An executor may be paid back for any expenses during the probate process. The amount of these fees depends on the size and complexity of the estate, unless a specific fee is stated in the will.
How long does a probate proceeding take? How much does it cost?
The cost and duration of probate depends on the size of the state, the nature of the estate assets, and the number of cases on the court’s calendar. Generally, the process can take between 9 to 18 months. When the estate includes real estate that must be sold, however, the process may take longer. Additionally, expenses associated with probate include executor fees, attorney and court fees, surety bonds, and appraisal costs, although some of these fees and costs may be waived.
What is a will contest?
At times, the validity of the will may be questioned in what is referred to as a will contest. The grounds for contesting a will include:
- The will was not properly executed
- The testator (the person making the will) lacked mental capacity
- The testator was unduly influenced or coerced into making a will
- There was fraud or forgery involved in preparing the will
Because a will contest can be expensive to litigate, however, the parties are often better served by reaching a negotiated settlement.
Illinois Probate and Estate Administration Attorney
Being named as an executor is a serious responsibility that can become difficult while grieving the loss of a loved one. Similarly, managing the estate of someone who did not create a will can be equally challenging. Attorney Michael J. Smith helps to lift these burdens by guiding his clients through the probate process with compassion and skill. He also represents beneficiaries to ensure that they receive the inheritance that was intended for them. Call the office today or complete the contact form on our website to set up a consultation.