If you find yourself involved in the Illinois probate process, as an Executor, beneficiary or heir, or even a creditor of the estate, you may wish to know how long the probate process takes. Given the unique nature of each estate that goes through the probate process there is no universal time frame that applies to the probate process. If you need an estimate for the probate process in which you are involved it is best to consult with an experienced Illinois estate planning attorney. In general, however, there are a number of factors that will impact how long the probate process takes. Knowing what those factors are, and understanding how the Illinois probate process works, will help you estimate how long the probate in which you are involved will take to complete.
Alternatives to Formal Probate
Because not all estates are required to go through the formal probate process, it is important to know if the estate you are involved in will qualify for an alternative to formal probate. If it does, the probate process will be significantly faster. The primary requirement for using a Small Estate Affidavit is that the estate assets cannot exceed $100,000 in value, or contain real estate. If the estate is using a Small Estate Affidavit in lieu of formal probate you can count on the probate process concluding in a relatively short amount of time.
Minimum Time to Probate an Estate
If the estate requires formal probate, you can be assured that it will take a minimum of six months to conclude the probate process, and typically more like nine months. The minimum time frame relates to the time allotted by law for creditors to file claims against the estate. From the time they are notified, creditors have six months to file a claim against the estate. The Executor must then review the claim and approve or deny it. Therefore, probate cannot terminate prior to the six-month mark.
Testate vs. Intestate Estates
A “testate” estate is one in which the decedent left behind a valid Last Will and Testament. An “intestate” estate is one where the decedent did not leave behind a Will. In a testate estate the terms of the Will dictate how the estate assets are handled whereas in an intestate estate the Illinois intestate succession laws will determine what happens to estate assets. An intestate estate can take longer to probate because the court must first determine who all the legal heirs are and then locate them and notify them that the probate process is underway.
The Probate Steps
Although no two estates follow the exact same path through the probate process, there are some steps that are common to most probates, including:
- Estate Assets – the Executor/Personal Representative of the estate must identify, locate, value and inventory all estate assets. As a general rule, the larger the estate, and/or the more complex the estate assets are, the longer this takes.
- Creditors – notification must be given to all creditors of the estate shortly after probate is opened. Creditors are then given an opportunity to file a claim against the estate. Approved claims are paid out of estate assets. If sufficient liquid assets are not available, assets must be sold to pay creditors. This can also add extra time to the probate process.
- Challenges to the Estate – if an interested party believes the Will submitted to probate is not valid a Will contest may be filed. If that occurs, the challenge must be litigated before probate may resume. If the contestant prevails, the Will is declared invalid. The court then looks for another valid Will to use for the probate of the estate. If no valid Will exists the estate becomes an intestate estate. This is the most likely issue to significantly hold up the probate of an estate because it can take months, even years, to litigate a Will contest.
- Estate Taxes – all tax returns, including federal gift and estate taxes, must be prepared and all taxes obligations paid before any assets may be distributed to heirs or beneficiaries.
- Distributing Assets — finally, when taxes have been paid and all other estate business concluded the estate assets may be transferred to the intended beneficiaries or heirs of the estate.
If you have additional questions or concerns about the Illinois probate process, contact the experienced Illinois estate planning attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.