When someone dies, they typically leave behind property that makes up their estate. The law requires that property to pass through what is referred to as “probate” before it can be transferred to the intended beneficiaries or heirs of the estate. If you recently lost a loved one, understanding the probate process is essential.
The primary purpose of probate is to ensure that all of a decedent’s estate assets are located, inventoried and valued prior to being passed on to loved ones or heirs of the estate. In addition, probate allows creditors of the estate to file claims against the estate. Of course, both state and federal taxes are also calculated and paid out of an estate prior to estate assets being transferred to heirs or beneficiaries.
Most states, including Illinois, allow small estates to avoid the often time consuming and costly process of formal probate by using a small estate probate option. In Illinois, an estate valued at less than $100,000 that does not include real property and that does not have any claims or debts may use a “small estate affidavit” in lieu of formal probate. All other estates, however, must go through formal probate.
If the decedent left behind a Last Will and Testament, the individual who was appointed as executor under the terms of the Will typically initiates and oversees the probate process. If the decedent did not execute a Will prior to his or her death then the court will usually appoint someone to be the personal representative of the estate. Often, a spouse, adult child, or other relative will petition the court to be appointed as personal representative.
The executor or personal representative has a number of important duties during the probate process. Many of these duties involve legal issues that he or she is likely unfamiliar with, which is why most executors/personal representatives retain the services of an estate planning attorney to assist during the probate process.
During probate all of the estate assets must be accounted for and valued. Claims made against the estate by creditors must be reviewed and paid out of estate assets if they are determined to be valid. Any challenges to the estate must also be litigated and all tax returns filed and tax obligations paid. Finally, assets remaining in the estate need to be legally transferred to the beneficiaries under the terms of the Will or to the legal heirs of the estate if the decedent died intestate, or without a Will.
Even a simple estate generally takes months to probate. A complicated or valuable estate can spend years in probate. If you find yourself appointed to be the executor or personal representative of an estate, be sure to consult with an estate planning attorney right away to ensure that everything is done properly during the probate process.
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