If you have recently lost a family member or close loved one you are undoubtedly going through a very emotional time grieving your loss. If you also found out that the decedent appointed you as the Executor of his/her estate you may be feeling overwhelmed and not know where to start. You are certainly justified in feeling overwhelmed as it can be a lot to take in at one time. Unless you have been through it before, the probate process can be confusing, particularly if you are the Executor and are responsible for overseeing the entire process. The good news is that an experienced Illinois estate planning attorney can help you probate the estate.
What Is Probate?
When an individual dies, an estate is left behind that is made up of all the assets owned by the decedent at the time of death. All of those assets must be accounted for and eventually transferred to the legal heirs or designated beneficiaries of the estate. The probate process evolved as a way to make sure that the transfer of assets is accomplished in accordance with all applicable laws as well as to ensure that all creditors of the estate are paid and all taxes collected before those assets are transferred.
Do All Estates Go through the Same Probate Process?
Most estates are required to go through formal probate; however, the State of Illinois does offer an alternative to formal probate known as a “Small Estate Affidavit.” To be eligible to use a “Small Estate Affidavit” the total value of all estate assets cannot exceed $100,000. In addition, if there are creditor disputes, or if someone challenges the validity of the Last Will and Testament submitted for probate, the estate will likely need to go through formal probate. Your estate planning attorney can help you determine which type of probate is required for the estate you are probating.
What Steps Are Involved in the Probate Process?
Although the probate process is never exactly the same for any two estates, there are some basic steps that are involved in the probate of almost all estate, including:
1. Opening probate – the probate process is initiated by the Executor of the estate as determined by the decedent’s Last Will and Testament or by someone who volunteers to be the Personal Representative if the decedent died intestate, or without leaving behind a valid Will. The original Will, if applicable, must be submitted to the probate court along with a petition to open probate.
2. Identifying and locating heirs in an intestate estate – if the decedent died intestate, the legal heirs of the estate must be determined by the court. A diligent search must then be made to locate those heirs.
3. Notifying creditors – creditors of the estate must be notified that probate is underway. This may be done individually for known creditors but must also be done by publishing a notice of probate in a local newspaper.
4. Reviewing creditor claims – creditors have a specific period of time within which a claim against the estate must be filed or it is forever barred. Submitted claims are reviewed and approved claims are paid out of estate assets.
5. Litigate challenges to the estate – if a Will contest is filed the contest must be litigated before probate may proceed because the manner in which the estate is probated will depend on the outcome of the litigation.
6. Paying estate taxes – a federal estate tax return must be prepared and any gift and estate tax obligation paid.
7. Transferring assets – finally, the remaining estate assets are transferred to the intended beneficiaries and/or legal heirs of the estate.
How Can an Estate Planning Attorney Help?
Because the average person is not familiar with the steps involved in probating an estate, it is common practice for an Executor to retain the services of an estate planning attorney to represent the estate during the probate process. An estate planning attorney can help you in a number of ways, including:
• Preparing and filing the Petition to Open Probate
• Ensuring that all creditors of the estate are properly notified
• Assisting with the valuation of estate assets
• Preparing the inventory to submit to the court
• Defending the estate if it is involved in litigation
• Liquidating assets if necessary
• Calculating the estate’s tax obligation
• Preparing documents necessary for the legal transfer of the assets to the intended beneficiaries
For more information, please join us for one of our upcoming free seminars. If you have additional questions or concerns about how an estate planning attorney can help you probate an estate, contact the experienced Illinois estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.