When a family member or close loved one dies, one of the first practical tasks people do is look for the decedent’s Last Will and Testament. What happens though if you can’t find a Will? Not everyone gets around to executing a Will before they die. If you recently lost a loved one, and are wondering what to do in the absence of a Will, a probate attorney explains what happens next.
What Is Probate?
When an individual dies, that person leaves behind a legal estate consisting of all assets owned by the decedent at the time of death. This includes both real and personal property as well as both tangible and intangible assets. All estate assets must eventually be transferred to new owners. In addition to effectuating the transfer of estate assets, probate also serves as a method of ensuring that estate creditors are notified and allowed an opportunity to file claims against the estate as well as making sure that all gift and estate taxes owed by the estate are paid.
Testate vs. Intestate Estates
If the decedent left behind a valid Last Will and Testament, the estate is referred to as a “testate” estate. If the decedent died without leaving behind a Will, the estate is an “intestate” estate. Fundamentally, probating a testate estate is the same as probating an intestate estate in that the basic goals of the probate process remain the same. There are, however, a few important practical and procedural differences.
Probating an Intestate Estate vs. Probating a Testate Estate
The difference between the probate of a testate and an intestate estate begins with who oversees the probate process. When a decedent executes a Will, one of the most important decisions made during the creation of that Will is the appointment of an Executor who will oversee the probate of the estate. In an intestate estate, there is no Executor appointed by the decedent. In the State of Illinois, when the decedent left behind an intestate estate the court must appoint an “Administrator.” The generic name used to refer to either an Executor or Administrator is “Personal Representative.”
The other fundamental difference between the probate of a testate and an intestate estate is found in how the assets are distributed. When the decedent leaves behind a Will, the terms and provisions of that Will are used to decide how the estate assets are distributed. The law requires the estate assets to be distributed according to the decedent’s wishes as expressed in the Will. If the decedent did not leave behind a Will, the Illinois intestate succession laws dictate the distribution of estate assets.
Along with the fact that the decedent lost the opportunity to decide what happens to his/her assets by failing to execute a Will prior to death, another major difference and disadvantage to dying intestate is that estate assets may need to be sold in order to divide the estate according to the intestate succession rules. Unfortunately, this can mean that important assets are lost to the family forever. If you find yourself in a position where you are the Personal Representative of an intestate estate, consult with an experienced probate attorney immediately to ensure that you understand the intestate succession laws.
Contact Probate Attorneys
If you have questions or concerns regarding the probate of an intestate estate in the State of Illinois, contact the experienced probate attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.