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 35 years, Michael J. Smith, Attorney at Law, LLC, has provided probate and estate administration 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.
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.
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:
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.
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:
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.
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.
The cost and duration of probate depend 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 and 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.
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:
Because a will contest can be expensive to litigate, however, the parties are often better served by reaching a negotiated settlement.
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 at 815-923-1129 or complete the contact form on our website to set up a consultation.
Michael J. Smith, Attorney at Law, LLC, serves clients in Winnebago, Boone, Stephenson and Ogle counties and throughout the greater Northern Illinois area.