Although people often fail to realize it, one of the most important decisions that needs to be made when creating a Last Will and Testament is the appointment of the Executor. The Executor is the individual who will be responsible for probating the Will after the death of the Testator. Ideally, the Testator of a Will discusses the appointment with the chosen Executor at the time the Will is executed; however, it is actually rather common for a Testator not to tell the Executor about the appointment. If you recently learned that you were appointed to be the Executor of the Will of a recently deceased loved one, you may be feeling a bit overwhelmed if this is the first time you have served as an Executor. Understandably, you may be wondering “What is involved when I probate a Will?” Although every probate process is unique, the following steps are typically involved when you probate a Will.
- Locating an original copy of the Will. Even if you are certain you are the Executor, you must locate an original copy of the decedent’s Last Will and Testament to submit to the court for probate. If you do not have the original will, check with family member and the decedent’s estate planning attorney.
- Putting together an estimate of probate assets. Not all estates are required to go through formal probate. Smaller estates may qualify for an alternative. Therefore, you need to get a rough idea of the assets and the value of the decedent’s probate estate. Common non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Retirement accounts
- Accounts designated as POD or TOD
- Opening probate. You will need to prepare a petition to open probate and submit the original decedent’s Will to the appropriate probate court. If the estate requires formal probate, this is typically when an Executor retains the services of an estate planning attorney to assist.
- Identifying, locating, and inventorying all probate assets. A more formal and thorough inventory of the decedent’s assets must be conducted. You will need to identify and take context of all assets owned by the decedent at the time of death and obtain a date of death value for each asset.
- Notifying creditors. Known creditors can be notified personally; however, unknown creditors must also be notified by publishing a notice of probate in a local newspaper.
- Reviewing creditor claims. Creditors have a statutory time period within which claims against the estate must be made. As the Executor, you must review all claims submitted and approve or deny each one.
- Paying creditor claims. All approved claims must be paid out of available estate assets. If sufficient liquid assets do not exist to pay all claims, you may have to sell estate assets to raise the needed funds. If the estate lacks sufficient assets to pay all claims in general, claims must be paid according to priority.
- Litigating challenges to the Will. In the event that a Will contest is filed challenging the validity of the Will submitted to probate you must defend the Will throughout the ensuing litigation.
- Calculating and paying taxes. All estates are potentially subject to federal gift and estate taxes. The State of Illinois also imposes a state level estate tax on estates that qualify. You must prepare state and federal estate and tax returns and pay any taxes due from the estate.
- Transferring assets to beneficiaries and/or heirs. Finally, you must effectuate the legal transfer of any remaining assets to the intended beneficiaries and/or heirs of the estate.
Where to Turn to for Help with the Probate of a Will
If you are suddenly faced with overseeing the probate of a Will that requires formal probate, it is in your best interest to consult with an experienced Illinois estate planning attorney to ensure that you do not make any costly mistakes.
If you have questions or concerns regarding the probate of a Will in the State of Illinois, contact the experienced Illinois estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.
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