Probate

  • Probate is a Latin term meaning “to prove (the will).”  Probate is a judicial process by which property is transferred from a deceased person to that person’s heirs.  In Illinois, if the estate includes $100,000 and/or real property, it must be probated.  The probate process takes at least six months, and sometimes years, to complete.

Estate & Business Law Group wants to make this process as easy on you and your family as possible.  When you meet with us, we will explain the probate process, assess your situation, and help you proceed. 
 
Steps of Probate:

  • Opening the estate

  • Sending notice of the opening to appropriate parties

  • Conducting an inventory of the estate property

  • Obtaining a taxpayer identification number from the IRS to prepare and file appropriate income tax returns

  • Conducting the final accounting

  • Submitting the final report

  • Closing the estate

It is not uncommon for parties to attack, or contest, the probate process, which prolongs the process. 
 
Common Challenges in Probate

  • Execution of a Will- Illinois statute has strict requirements and procedure of executing a will.  If not properly executed, the will could fail, and estate distributions will be per state law, not according to decedent’s wishes.

  • Will Contest- If a contesting party can prove that the will was created by fraud or the creator was not of sound mind when signing, then the will could fail.

  • Ambiguous Terms- A will can be contested by showing that the terms are too vague.

  • Creditor Claims- Potential creditors can file claims against the estate for monies the deceased person owed them.

  • Citations to Discover/Recover Assets- If someone refuses to provide the representative with assets of the estate, the representative must ask the judge to force that person to return the asset.



Frequently Asked Questions

 

































How do the costs of administrating a trust compare with probating a will?
The costs of administering a trust include attorney’s and accountant’s fees, and occasionally appraisal of assets.  Your estate planning attorney will work with your family to review the instructions given in your estate plan, identify your wishes, and advise and coordinate with the estate planning team on all legal issues including its administration.  This involves:


While every case is unique, attorney’s fees for trust administration services typically average one and one half percent or less of estate assets.  Fees are usually based on the estate’s complexity and whether or not your trust was fully funded during your lifetime.

This compares very favorably with the cost of probating a will, which often consumes 3 to 7% of the total estate.  Additionally, the estate taxes on your assets, if you rely on a simple will instead of a trust, could cost your family hundreds of thousands of dollars in unnecessary estate taxes.  Although wills generally cost less than trusts to prepare initially, a comparative analysis of the two shows, that a trust-based plan will ultimately cost far less, while also simplifying the settlement process for your loved ones.

The probate process allows creditors to make claims for debts incurred during the deceased’s lifetime and allows the estate to pursue other legal actions pertaining to the decedent.  Notice of the probate proceeding must be given to all known creditors and to all creditors who might be known after careful investigation.  It must also be given to all relatives who may be legal hers, even if they are not included in the will.

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Are there any advantages of probate?
Advocates of probate argue that because probate proceedings are held in open court, it benefits potential heirs by providing everyone equal access to information contained in the probate record.  They also argue that court supervision of the probate process benefits society by providing an orderly way of wrapping up a decedent’s estate.  They further argue that additional benefits exist in that institutions dealing with probate court orders recognize them as binding, that rights of lost heirs are severed, that claims not timely filed can be legally barred, and that the estate may pursue any litigation deemed necessary.

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What are the disadvantages of probate?
The disadvantages of probating a will are many.  As stated above, the probate process is expensive, time consuming, and intrusive.  Court costs, attorney’s fees, personal representative fees, bonds, and accounting fees all add up.  The cost of probate is often between 3 to 8 % of the gross value of an estate (up to eight thousand dollars for a hundred thousand dollar estate).  If your estate is probated without a will, the costs of probate may be even greater.

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Can probate be avoided?
Yes, probate can be avoided by titling property with someone else in joint tenancy.  Such property will be transferred to the surviving joint tenant probate free.  Because joint tenancy property passes probate free, many individuals mistakenly believe they do not need further planning, if everything is titled in joint tenancy.  But joint tenancy can result in property passing to unintended heirs; risks unforeseen tax consequences, and can result in loss of assets to lawsuits and other misfortunes.

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Is there a better way to avoid probate?
Yes!  A simple and superior way of avoiding probate is to place your property in a trust, so that it passes probate free, while avoiding all the negative results of joint tenancy ownership.

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