In addition to dealing with the grief that accompanies the death of a loved one, there are legalities that must be addressed associated with settling their estate. Before assets can be distributed to beneficiaries and heirs, the estate must go through an administration proceeding. In Illinois, the Probate Court in the county where the decedent was a resident has jurisdiction over the matter. 755 ILCS 5/5-1. An administrator (also called an executor or personal representative) appointed by the Probate Court is responsible for the activities required to settle the decedent’s affairs and distribute estate assets.
Probate is a term that often brings stress. It is something that people want to avoid. Probate is the legal process that estates of decedents must go through in order for their probate property to be legally transferred to beneficiaries and heirs. For example, if a father passes away leaving a daughter and no other relatives, it seems obvious that his daughter should get his house. The problem is that the title of the house cannot be legally transferred to the daughter until the father’s estate is settled during the estate administration process.
To initiate probate in Illinois, a petition must be filed with the Probate Court along with the will, if any. Typically the executor named in the decedent’s will or the person wishing to be appointed administrator is the person who files the petition. Deadlines for filing probate petitions vary from state to state. The deadline for Illinois is very short. The law requires that whoever is in possession of the will must file it “immediately.” It also requires that within 30 days of becoming aware that they have been named executor, that person must initiate the probate proceeding. 755 ILCS 5/6-1
If the court approves the petition and determines the will (if any) to be valid, the executor or administrator will move forward and commence the activities necessary to settle the decedent’s estate. Those activities include inventorying the estate property, paying estate debt, and distributing estate assets to beneficiaries or heirs.
Note that the executor will not be able to transfer assets until after estate debt is paid. The executor is accountable to the Probate Court and to beneficiaries and may be required to submit an estate accounting, detailing the activities completed during the administration process. The administration process typically takes about 6-12 months but can take quite a bit longer if the estate is complicated or if probate litigation develops.
We know that a painful part of probate is when disputes occur during the process. Because probate occurs during an emotional time, it is not unusual for spats to occur among family members. However, when a “spat” cannot be resolved and is rooted in legal grounds, it can turn into full blown probate litigation and the court will have to step in to resolve it.
Common causes of probate litigation include will contests, fiduciary disputes, ambiguities in the will, and disagreements over the appointment of the administrator. Prolonged probate litigation is not only costly to the estate as expenses must be paid from estate assets, it can also delay probate and the eventual distribution of estate assets.
Not every person writes a will. If someone passes away without leaving a will or if their will is invalidated during a will contest, under Illinois law their estate must still go through an administration process through the Probate Court. However, the distribution of their assets will be based on Illinois laws of intestate succession. 755 ILCS 5/2-1.
Typically, this means that the property will go to the decedent’s surviving spouse and children, if any. Otherwise, it will go to other blood relatives. In some cases the right to inherit may have to be proven through a heirship hearing during which evidence of consanguinity must be provided.
Small Estate Affidavit
Recognizing that formal administration is burdensome for small estates, Illinois offers the Small Estate Affidavit as an alternative for small, qualified estates. A small estate affidavit can be used with testate and intestate estates. If there is a will, then the executor would file the affidavit. In the absence of a will, a beneficiary would file it. 755 ILCS 5/25-1
For an estate to qualify for the small estate process, the following must be true:
- Maximum of $100,000 in assets
- No real estate
- No administrator
- Will, if any, filed within 30 days of death
- There are no probate disputes
- Outstanding debts are listed on the small estate affidavit and the affiant promised to make sure they are paid