Losing a loved one is difficult. In addition to the emotional impact of the loss, there is often a lot of transactional work that must be done to wrap up the decedent’s affairs. The formal administration of a decedent’s estate in Illinois is called probate.
Probate certainly gets a bad reputation in the media – sensationalized stories of assets being locked up for years, fighting amongst heirs, and legal fees that greatly deplete the estate are the norm. Fortunately, as with most stories in the news, these tales tend to be the most extreme cases, which are then further sensationalized for shock value. Most probate proceedings are free of drama, of moderate expense, and take a reasonable (by court standards) amount of time.
Given that the media and Hollywood blow everything out of proportion, you are probably asking, how much does probate cost in Illinois? Let’s dive into this common question.
Is Probate Even Necessary?
For those with very simple estates, probate may not be necessary at all. I have written a separate article that discusses whether probate is necessary in Illinois, but because the necessity of probate is relevant to the cost, I will briefly discuss it here.
Realizing that probate isn’t a good use of court and family resources in estates with little property and no disputes, the Illinois legislature devised several processes to wrap up an estate without going to court. The Illinois Small Estate Affidavit is by far the most common and useful. If an estate qualifies for the use of the Small Estate Affidavit, probate is not necessary and attorney fees as well as costs are greatly reduced.
To qualify for use of the Illinois Small Estate Affidavit:
The gross value of the personal estate must be less than $100,000.00;
There must not be real estate in the estate;
There must not be a previously filed petition for probate; and
There must not be disputes related to the validity of a will or the heirs of the decedent.
If all those conditions are met, the estate may be a good fit for avoiding probate through use of the Small Estate Affidavit. There are other factors to consider when deciding whether to avoid probate, but those are discussed in my Avoiding Probate in Illinois article.
If probate can be avoided with the use of an Illinois Small Estate Affidavit, expect to pay between $500.00 to $1,000.00 in legal fees for advice to the affiant (person signing the affidavit) and assistance executing the affidavit.
If probate cannot be avoided, the family must consider the different factors that influence the cost of formal probate. The remainder of this article will cover the cost of a formal probate proceeding.
What Is the Cost of Probate Court in Illinois?
If probate cannot be avoided through use of the Small Estate Affidavit or other probate-avoiding procedures, formal probate court is required.
The cost of probate generally involves four different classes of expense:
Administrator/executor fees; and
Fees of other professionals.
Court costs is the general category of expenses paid to the court or to other third parties as required by statute or local rules. Court costs are changing all the time – almost always increasing – so you should check with the clerk of court in the county where the decedent lived at the time of death to get a more accurate picture. A list of current probate court costs for Cook County can be found at this link.
Court costs vary by case and tend to be one of the lesser costs of probate in Illinois. The most significant costs are as follows:
Filing Fee: There is a filing fee associated with opening a probate estate. This fee goes toward the administrative expenses of running the court and myriad of other programs that have been tacked on over the years. As of May of 2017, the filing fee for all estates valued at over $15,000.00 is $453.00 and is $293.00 for smaller estates.
Publication of Notice: The cost of publication varies from county to county. In Chicago, notice is customarily published in the Chicago Daily Law Bulletin, which costs between $200.00 and $300.00.
Surety Bond: If there was no will or the will failed to waive the bond requirement, the administrator/executor must obtain a bond in the amount of 1.5 times the value of the estate, if the bond comes from a surety company, or 2 times the value of the estate if individual sureties are used. The cost of the bond itself varies by the size of the estate.
Legal fees are almost always the most substantial cost of probate in Illinois. Though alternative billing is possible in rare instances, probate attorneys almost always charge an hourly rate for time spent working on the probate case. The rate charged varies from attorney to attorney and there can be dramatic differences between urban areas such as Chicago and more rural areas. Typically, the hourly rate for a probate attorney is going to be in the $300.00 to $500.00 range.
Though it is easy to determine what an attorney’s hourly rate is, the total cost is much more complex and unpredictable. Most people think their estate will be “simple,” but many are not. Moreover, even those that look routine from the outset can become very complex and labor-intensive due to the actions of a single disgruntled heir or creditor asserting a disputed debt. Some factors that influence probate legal fees include:
Size of the estate: Generally, larger estates take more time to handle and are also more prone to many of the other factors that increase legal fees.
Complexity of assets and debts: The range of asset and debt complexity is enormous. Many estates consist of no more than the primary residence of the decedent and their normal cost of living debts. Conversely, some estates are massive with convoluted ownership and/or debt structure. The variations are endless. As complexity increases, so does the legal fee.
Complexity of heirship: Though heirship in many families follows traditional norms, divorces and children born to unmarried people are frequent. Even if there is no dispute, complex heirship increases the amount of time an attorney must spend on a probate case.
Will contests and heirship disputes: Contests and disputes can dramatically increase attorney fees. If a family member or other person that could benefit if a will or other estate planning instrument is set aside chooses to contest the validity of that instrument, the executor must defend the contest. Heirship disputes can also be time consuming. In cases where heirship is in doubt, numerous hearings are necessary to determine whether an individual is an heir of the decedent. Any sort of litigation is extremely time consuming and will result in a substantial increase in attorney fees.
Claims disputes: People often forget that probate involves both the distribution of assets and the paying of the decedent’s debts. Though most claims are not controversial and are paid without objection, some cases involve disputed claims that require a hearing. Hearings take time and preparation, so they increase the cost of attorney fees.
Claims held by the estate: In some cases the probate estate may possess legal claims that have to be litigated. Though outside counsel is often employed to pursue these claims, they must be paid for their services.
Burdensome heirs and legatees: The cost of an attorney is directly related to the amount of time they must spend on the probate case. In some cases the people that will ultimately benefit from the estate are either unhappy with the pace of the proceedings or just generally want constant updates. Ideally, the executor/administrator could provide sufficient updates, but some heirs insist on updates directly from a lawyer. In these cases, the representative must decide whether it is wise to have the attorney respond to every inquiry or risk alienating the heir by limiting their access to the attorney.
Abilities/involvement of administrator/executor: Administrators and executors have a lot of duties with respect to managing the estate. Some representatives are well equipped and motivated to carry out these duties and the burden on the attorney and staff is low. In other cases the representative may not have all the skills needed or may be so busy that the attorney and his or her staff have to carry out tasks normally handled by the administrator or executor. Since the attorney is paid for their time, the more the representative delegates the higher the bill.
Many attorneys are reluctant to give a range of total fees because clients often assume they will be at or below the low end of the range. Generally, in the Chicago-area market a run-of-the-mill estate with no complicating factors will result in attorney fees in the $5,000.00 to $7,000.00 range. Conversely, extremely complex estates, especially those involving disputes, will contests, litigation and complicated assets can cost tens of thousands or more. To get a more accurate estimate, it is best to set up a consultation with a lawyer and go over the estate.
Under Illinois probate law, the representative of the estate is entitled to a reasonable fee for their labor. In many estates the administrator or executor is a substantial or primary beneficiary of the estate, so their fee isn’t a typical cost of probate.
In probate estates where the representative is not a person that benefits from the estate, such as a corporate representative, the representative’s fee can be a significant cost of probate. Because of this, the next of kin should carefully do a cost-benefit analysis when considering an outside representative if one is not mandated by the decedent’s estate planning documents.
Fees of Other Professionals
The type and cost of other professionals needed to administer a probate estate varies from estate to estate.
Accountants are commonly needed if the estate owns a business or if the final tax returns of the decedent have any level of complexity. In very large estates, subject to the estate tax, an accountant or tax lawyer is a likely cost.
If an estate has real estate that must be liquidated, a real estate agent will be required and their fee will be a cost of probate.
Estates that have a business that is a going concern likely have many costs to keep the business running. If a business must be liquidated, numerous professionals may be required.
Who Pays the Fees and Costs?
Typically, the cost of probate in Illinois is paid from assets of the estate. Initially, the attorney may ask for a retainer, often in the $2,000.00 range to get started. The person who advances the initial payment is generally entitled to reimbursement from the estate and further payments are made directly from the estate’s accounts.
What’s the Bottom Line on the Cost of Probate?
The bottom line: If probate is required, the cost of probate in Illinois is typically $5,000.00 to $7,000.00 in a relatively simple estate with no disputes and a competent executor or administrator. Though the fees are paid by the estate itself, the family typically must advance around $2,000.00 to get the process started. That money will eventually be reimbursed from the estate so long as it is solvent.