Probate & Estate Administration
When a person dies, how are their debts paid? How is their property transferred to their loved ones? Typically, the answer is through probate. Probate is the process through which a court oversees the collection, liquidation, and distribution of the assets of a person who died (the “decedent”), as well as the payment of that person’s debts. The word “probate” comes from the same Latin root as “to prove,” because probate provides creditors the opportunity to prove the validity of their claims. The court oversees the handling of a deceased person’s property to ensure that their debts are paid before their assets are distributed to their loved ones.
Probate is only required under certain circumstances. In Illinois, if the total value of the decedent’s assets is less than $100,000, probate might not be necessary. Moreover, probate is not required to transfer assets for which title does not pass by operation of law. For example, property held in a trust, in joint ownership, or in certain accounts with designated beneficiaries may often be distributed according to the terms of the documents that identify the beneficiaries or the joint owners. As part of the probate process, the probate judge will issue “Letters of Office” designating someone as the personal representative of the estate. The representative is responsible for taking account of what the decedent owned at the time of his or her death, what he or she owed, and how to distribute the remaining assets. In Illinois, after a person’s death, creditors have a limited amount of time during which to file claims against the person’s estate. Claims filed after the specific time limits established in the Probate Act would be barred. Once a claim is filed, the estate may pay it in full, settle it, or reject it. If a claim is rejected by the estate’s representative, the representative must notify the creditor, who then must litigate the issue in court. Once claims are resolved, the balance of the estate can be distributed. Most of the time, the probate process is straightforward. Other times, it isn’t. Often, a complicating factor arises where someone challenges the validity of a will or its provisions. Such challenges are handled in the probate process.
Usually, will contests are filed by relatives who have been disinherited. Such challenges may focus on the entire will or on particular provisions in it. They may claim that the will was not prepared in compliance with the requirements of Illinois law. A challenge may assert that the decedent was not of sound mind when she or he signed the will, or that the decedent was forced, threatened, coerced or subject to some other undue influence at the time of signing. There are also other reasons for contesting or invalidating a will. Such contests may become extensive and costly trials, in addition to family feuds.
If a loved one has died, you may have many unanswered questions. Is there a will? Is anyone challenging the will? Does it need to be filed? If so, where? Does a probate estate need to be opened? Who is responsible for starting the process? How is it done? Do you need to hire a lawyer? How long does it take? How much will it cost? Are there any legal deadlines which can affect your rights or the rights of others?
The experienced probate attorney Daniel J. Kollias can answer these questions for you, and help you through what is certainly a difficult time. We can help you determine what the best course of action to make sure that your loved one’s wishes are honored, and to fully protect your rights.
Good planning can avoid many of the difficult issues which can arise during probate. If you wish to avoid probate, or if you wish to limit the possibility that someone might contest your will after your death, please contact us to schedule an appointment to review your estate plan.
Finally, if you are owed money by someone who has recently passed away, we can assist you in collecting against the estate.
For a free 30-minute initial consultation regarding any probate-related matter, please call us at (630) 407-1200, or complete our online intake form.