Every Wednesday we provide five legal tips based on questions we have received from callers on various areas of Illinois law. This week’s tips focus on probate law which is the process of transferring a person’s property/assets/possessions upon their death.
1. Time: The probate process, by law, takes at least six months from the day that the will is filed. This is allowed for anyone who may want to challenge a will to come forward as well as for creditors to make claims that they are owed money. Most probate cases take 12-18 months. Even if you know that you are the only heir to an estate you can’t get around this rule.
2. No will: If a person dies without a will it means that they have died intestate. No matter your relationship with the deceased or even if you know what the deceased wanted to happen, the law will trump all of that. If you die without a will and have a spouse and kids, half goes to the spouse, half to the kids. If there is no spouse then the kids all share equally. From there it could go on to surviving parents or siblings. Making a will takes very little time and can avoid all of these problems.
3. Power of Attorney: A lot of people that contact us think that because they had a power of attorney over the deceased, they can make all of the decisions once that person has passed. That is simply not true. A power of attorney ends when the person dies.
4. Avoiding probate: If you want to avoid probate court when you die, you can put things in a trust which a is a legal document that will allow you to maintain control of what you have, but automatically pass it on when you die. That can still be challenged in court, but does not require anyone to file in court. In addition, if you put someone on your bank account or home, those can also avoid probate.
5. Challenging a will: You can’t challenge a will because you aren’t happy with what it says or don’t think it’s fair. You can challenge if you have proof that the person who signed it was not mentally competent when they did it (e.g. they were on their death bed pumped with drugs), it’s not a valid will (e.g. not properly witnessed), it was made under duress or you have a more current will that trumps the one that has been presented. These are not easy cases to win, but if you have the evidence in your favor it can happen.
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