One of the most common questions an Illinois probate lawyer faces is, “how long does probate take in Illinois?” Understandably, heirs and legatees (people who receive property under a will) would like to wrap up an estate and distribute property as quickly as possible. Unfortunately, the question is not as easy to answer as most people would like. The following are major considerations that influence the speed of the probate process:
Is probate required?;
Is the estate large or complex?;
Was the estate well-organized and well-planned?;
Is the estate representative diligent?; and
Will there be fighting among heirs and legatees?
All of these factors, most notably the final one, play a role in determining how long probate takes in Illinois.
Is Probate Required?
I have extensively discussed whether probate is required elsewhere on this website. You can click this link to read the full article and learn more. Generally, probate is required when the probate assets exceed $100,000.00 or when the probate estate includes real estate. The primary method for avoiding probate is by using the Illinois Small Estate Affidavit.
If probate can be avoided, the process is usually quicker as there is no 6 month creditor claim period (which is the main cause of slowing down distribution of smaller uncontested estates).
Is the Estate Large or Complex?
Estates vary tremendously in size and complexity. Probating the estate of an elderly grandmother with a house, $200,000.00 in the bank, and no significant debts is far different from managing the estate of a small business owner, farmer, or wealthy heiress.
If a person’s financial life is complicated, especially if he or she has a viable business, probate can take much longer than in the case of a run-of-the-mill estate. Businesses must be operated, appraised, and either transferred or liquidated. Additionally, estates that include lots of property mean lots of work and possible disputes with creditors and heirs. Busy experts and accountants are often involved in settling complex estates as well. This all slows things down (and raises expenses). I have written additional articles to improve your understanding of the probate process and the cost of probate in Illinois; read them by clicking the respective link.
Was the Estate Well Organized and Planned?
The most well-planned estates do not usually end up in probate. In these cases the decedent (person who died) holds almost all of his or her assets in a revocable trust – the primary method of avoiding probate pre-death. There may still be a will that transfers odds and ends in this type of estate, but the estate is specifically designed to keep the value of assets being transferred through the will below the Small Estate Affidavit threshold.
Even if advanced estate planning was not implemented, other planning and organization is still relevant. Some people are very orderly and plan for the inevitable, whereas others do not. If the decedent executed a will and kept good financial records, the time spent searching for assets and debts can be minimized, thus reducing the time required to manage an estate. In contrast, if the decedent never gave a thought to what would happen upon death (especially in cases of premature death), it can take substantial time to find assets and determine what debts are due. Disorganized estates are also prone to surprise discoveries, and surprises in court can greatly increase the duration of a proceeding.
Is the Estate Representative Diligent?
Every estate must have a representative that is in charge of estate management. If there was a will, this person is called an executor. If there was no will, the representative is called the administrator. In cases of a trust, the representative is the trustee. Globally, this person is simply called “the representative of the estate.”
Representatives come in all shapes and sizes and have vastly differing skill sets. Often, the representative is a close family member or the person who is set to inherit the largest share of the estate.
Some representatives have very useful skills for handling an estate, such as lawyers, accountants, or business professionals, but they are too busy to diligently do the work required of the to move the estate forward. In other cases, the representative lacks the skills necessary and has to delegate more work to the estate’s attorney or staff, which can create a backlog. There are even cases where the representative simply chooses not to focus on administering the estate so the estate languishes for months or even years.
Ideally, the representative will have the time needed to do the work and the capacity to do the work without heavy delegation (which also saves money). Representatives who procrastinate can be removed from their duties, but that, too, takes time and money. If the person being considered for the representative role seems reluctant or does not have much at stake in the estate, it might be best to choose someone else (or even a professional corporate representative if the estate is large).
Will There Be Fighting?
Most estates are administered fairly smoothly and with no disputes. This is beneficial as disputes can tremendously increase both the legal fees associated with administering an estate and also the time it takes to close an estate. Unfortunately, there is plenty of opportunity for fighting when an estate is administered. People can fight over who will serve as the estate representative, the validity of a will, how to handle a will’s ambiguities and complexities, and even who should receive certain pieces of property if the estate plan gifted the estate by percentages rather than making gifts of specific property.
Fighting can decimate an estate; in modest estates it can even result in the attorneys receiving most or all of the assets. Therefore, fighting should be avoided whenever possible.
Fighting can also cause significant delays in settling the estate. Disputes can easily add months to the timeline because legal fighting involves written arguments back and forth, and it takes quite a bit of time to draft them. Several appearances in court are also necessary, and sometimes evidence must be gathered from various sources. In extreme cases, expensive expert witnesses are also necessary. In rare cases estate litigation can go on for many years. These are the cases that you might see in the news, and they often involve extremely wealthy families. (Average people can’t afford years of litigation.)
The bottom line is that families shouldn’t fight unless it is really important. This is not the time to get revenge for your brother stealing your favorite toy 50 years ago. The stakes are too high.
How Long Does Probate Take in Illinois?
Now that I have addressed the significant factors contributing to delaying probate, I will do my best to provide a general estimate of what can be expected in an estate that does not have complicating factors.
All estates subject to probate in Illinois must be open for at least six months. This is because creditors of the estate typically have six months to assert their claims after notice is mailed or published. Of course, there is usually some work to be done before the notice to creditors can be mailed and published, and there is also work to be done after the claims bar date.
As such, it is fair to say a modest estate in Illinois with no fighting, no complications, a diligent representative, and a diligent attorney will take somewhere around a year to close. Any hiccup in the process can quickly add months as it may result in numerous court appearances or filing amended documents. A major complication, especially disputes (litigation) or a complex estate, can dramatically increase the amount of time an estate will spend in probate.
I hope you have found this article helpful.