Like most people, you will likely find yourself involved in the probate of an estate at some point in your life. Whether you are appointed the Executor of an estate, qualify as a beneficiary or heir, or are a creditor of the decedent, you may quickly find yourself asking “Why does probate take so long?” You are not alone in asking that question. Most people who are unfamiliar with the probate process are surprised, and often a bit irritated, when they realize that it often takes months – if not years – to complete the probate of an estate. Not surprisingly, the amount of time it takes to get through the probate process is one of the primary reasons why probate avoidance is such a common estate planning goal. A better understanding of what the probate process is intended to accomplish, and the steps necessary to accomplish those goals, should explain why the probate process takes so long.
Why Is Probate Necessary?
When you die, you will leave behind assets. Assets may include real and personal property as well as tangible and intangible assets. All of those assets will make up your estate for purposes of the probate process. Probate is the legal process that is required of most estates after the death of the estate owner. Probate has several purposes, chief among them identifying probate assets, paying creditors of the estate, and eventually transferring assets to the intended beneficiaries or legal heirs of the estate.
What Are the Steps in the Probate Process?
Although the probate process is unique to each estate, there are several steps that are common to the probate of most estates, including:
- Opening probate. The custodian of the decedent’s Last Will and Testament— usually the Executor — is legally required to submit the Will for probate. Typically, the Executor also files a Petition to Probate to start the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to be the Personal Representative of the estate and get the probate process started.
- Identifying and locating assets. The Executor/PR must identify and locate all assets of the estate that were owned by the decedent at the time of death.
- Valuing assets. A “Date of Death (DoD) value must be ascertained for all estate assets. This often requires professional appraisers.
- Identification of heirs(if applicable). If the decedent died intestate, all legal heirs of the estate must be identified because the intestate succession laws of the State of Illinois will determine which of those heirs inherit the decedent’s estate and in what proportion they inherit.
- Notifying creditors of the estate. Both known and unknown creditors must be properly notified that the probate process is underway. Unknown creditors are notified via publication in a local periodical.
- Paying creditor claims. The Executor/PR reviews each claim and approves or denies the claim. Approved claims are then paid out of estate assets. If sufficient liquid assets are not available to pay all approved claims, estate assets typically have to be sold to provide the necessary liquid assets.
- Litigating any challenges to the estate. In the event anyone challenges any aspect of the estate, such as by filing a Will contest, the Executor must defend the Will. If a Will contest is filed the probate process basically comes to a stop because the outcome of the litigation could change how the estate is probated.
- Calculating and paying estate taxes. Any federal gift and estate taxes due from the estate must be paid before assets from the estate can be transferred to beneficiaries or heirs.
- Transferring assets to beneficiaries/heirs. The Executor/PR must transfer the remaining estate assets to the intended beneficiaries or heirs of the estate.
In There a Minimum Time Frame for Completing Probate in Illinois?
In the State of Illinois the formal probate process will take a minimum of six months because creditors of the estate are given that long to file claims and interested parties that long to contest the Will. Therefore, the probate process cannot be concluded prior to that time.
To learn more, or to get started creating your Living Will and other Advanced Directives, contact the experienced Illinois estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.