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Overview of the Probate Process in Illinois
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What happens with an individual’s assets (cash, personal property, real estate, automobiles, businesses) after death may depend on whether or not the deceased had a will.
In Illinois, if the deceased has a will, it must be filed within 30 days of death at the county courthouse in the county where the deceased last lived. This is a simple filing and does not require any further action by the person doing the filing. In reality, many wills are filed after the 30 days and while this violates Illinois law, it has no real impact.
If there are assets over $100,000, the will goes through the probate process. The probate process is the legal process where the court confirms the validity of a will, makes sure debts are paid and then distributes the remaining assets.
Once the will is filed at the county courthouse and it is determined that it will be probated, the "executor" of the will is responsible for collecting and distributing assets and paying any creditors.
The will itself usually states who the executor will be. If it does not or the named person is unable or unwilling to serve as the executor, the court will appoint one. In Illinois probate court, you can file a petition to be appointed executor and the court will decide who is the most appropriate person to serve as executor.
If assets are less than $100,000 and there is no real estate, a "small estate affidavit" may be filed in order to avoid the court-supervised probate process described above.
If the deceased did not leave a will, then he or she died "intestate" and the estate will go through the intestacy process. The intestacy process is the order in which the assets will get distributed to the deceased’s closest relatives under Illinois law. This will typically depend on whether the deceased had a living spouse, children or siblings.
However, before any distribution can be made, an administrator must be appointed. Anyone who seeks to serve as administrator must file a petition with the court. Once the court chooses an administrator, the duties are similar to that of an executor – satisfying any outstanding debts, collecting assets and distributing them according to Illinois law (as opposed to a will).
Whether the estate has an executor or an administrator, this individual will likely hire an attorney to provide guidance in carrying out the duties and understanding the responsibilities of the role.
Whether it is a probate or intestate process, it can take six months to several years before the estate is closed, depending on the size and complexity of the estate. However, in either case, it will never be less than six months because the estate must stay open at least that long in order to allow claims to be filed by creditors and others who believe they may have a right to the estate’s assets.
Regardless of whether or not there was a will, there are some assets that do not go through probate or intestacy. These are called non-probate assets and include the following:
- certain bank accounts where there is a payment on death designation (funds are automatically distributed to that designee)
- certain life insurance policies that designate a beneficiary (the proceeds are automatically paid to the beneficiary)
- certain property owned in "joint tenancy" or "tenancy by the entirety" (the ownership automatically transfers to the other owner, but check with your attorney to confirm the type of ownership)
- certain securities that designate an individual to "transfer on death"
- certain retirement plans that name a beneficiary
In general, you should note that an Illinois inheritance lawyer can not get you any property or money that you are entitled to without going through the probate process. So if you are in this situation you need to go to probate so you can legally claim what is yours.
If you have any questions about this process or would like help in finding an Illinois inheritance law firm, please contact us at any time.