When a family member dies their debts must be paid and remaining property distributed in accordance with a will or the Illinois rules of intestate succession. For many people this will be their first time interacting with the court system and there will be far more questions than answers. I have already addressed common questions such as “who inherits in Illinois if there is no will?” and “When is probate required in Illinois?” This article will address the question, “Is a lawyer required for probate in Illinois?”
When Is a Lawyer Required for Probate in Illinois
Small Estates Under the Small Estate Affidavit
The Illinois Small Estate Affidavit is the primary tool for administering an estate without going to formal probate court. The applicability of the Small Estate Affidavit is discussed more thoroughly in my articles “The Illinois Small Estate Affidavit” and “When is Probate Required in Illinois.” Generally, the Illinois Small Estate Affidavit is available in estates that do not exceed $100,000.00 and do not contain real estate.
If the Illinois Small Estate Affidavit is used to administer an estate, the affiant (person who signs the affidavit) is not legally required to have a lawyer. That said, there are several reasons an affiant may desire the services of an attorney.
Probate Rules Are Complex and Difficult to Find
Though the affiant is not legally required to have a lawyer, it is wise for the affiant to hire one. It may seem wasteful to hire a lawyer when an estate is small, but many of the same rules that govern the full blown Illinois probate process apply to the affidavit.
The rules can be convoluted, difficult to find, and may involve law outside of the Illinois Probate Act itself. For instance, the affiant might need to understand the different classes of claims and whether an asset is a probate asset or not. The affiant may also need to learn how to interpret a will and apply concepts like ademption. Additionally, the affiant may have to apply the rules for the statutory spouse’s and childs’ award or evict a tenant. This is just a small example of concepts and rules the affiant may need to learn.
The Affiant Is Liable for Mistakes
Even if the affiant is confident in their ability to learn probate law and properly apply it, acting without a lawyer carries substantial risk. Under Illinois law, the affiant is personally liable for mistakes made in administering the estate. This means that if the affiant distributes assets to the wrong person or doesn’t pay claims in the proper order, the person or business that should have received the funds can sue them personally. To make matters worse, the person who successfully sues the affiant is also entitled to their attorney fees – which can be in the thousands or even tens of thousands of dollars depending on how hotly the claim is contested. It is very important for the affiant to do everything right, and the best way to ensure compliance is to hire a lawyer.
Representation Mitigates Family Disputes
A lawyer also helps mitigate family disputes and hurt feelings. It is common for heirs to become impatient with the administration process, accuse the affiant of being dilatory, or even accuse the affiant of misconduct, self-dealing, or favoritism. When a lawyer is hired, disgruntled family members can speak with someone who has experience, authority, and no familial baggage. This alone can be worth an attorney’s fee.
A Lawyer’s Experience Increases Efficiency
A lawyer’s experience is also valuable for addressing the day-to-day process of administration. The affiant has probably never handled an estate before and even if he or she knows the rules, the affiant likely does not know the best techniques to gather all the necessary information, discover and settle claims, document the process, and wrap up the estate. A lawyer’s experience is well worth the cost in efficiencies gained.
A consultation with a lawyer will provide valuable insight. The lawyer will not only determine whether the estate is legally eligible for the Small Estate Affidavit, he or she will also leverage experience to determine whether the affidavit is wise in the particular estate or if the in-court Illinois probate process is preferable.
Legal Fees Are Well Worth the Cost
Representation by a lawyer is not always expensive. In the simplest estates administered under the Small Estate Affidavit only a few hours of an attorney’s time may be necessary. Even in Chicago, the total fee may be less than $1,000.00 and is paid from the estate itself as a cost of administration (the highest priority of claims). Further, doing things right in the first place is far less expensive than hiring a lawyer to fix them after the affiant has made a mistake. Many lawyers make a substantial portion of their income fixing mistakes made by self-represented people.
Is a Lawyer Required for Full Probate Proceedings
I originally wrote this article in 2017 and at that time whether a lawyer was required for probate in Illinois was open for debate. Though representing an estate pro se (without a lawyer) was extremely unwise, and often practically impossible, some judges allowed it. This all changed in 2019 when the Illinois Appellate Court for the First District handed down its decision in the case of In re Estate of Mattson 2019 IL App (1st) 180805. In sum, the court held that a non-attorney may not represent an estate pro se and a lawyer is required for formal probate proceedings in Illinois.
The Mattson case involved the Estate of Carol Mattson who died leaving three of her adult children as heirs, Daniel Houlihan, Brian Houlihan, and Deborah Soraghan. After Carol’s death, Daniel filed a petition for letters of administration requesting the probate court appoint him as administrator of Carol’s estate pro se.
The probate court advised Daniel numerous times that he could not proceed as administrator without a lawyer because the administrator represents the interests of another person (the estate) and only a lawyer can represent the legal interests of another in court. The court continued the matter for Daniel to find an attorney, but ultimately denied Daniel’s petition without prejudice (giving him the right to refile with an attorney). Instead of hiring an attorney, Daniel appealed the probate court’s decision pro-se.
On appeal, the appellate court was asked to consider whether a lawyer is required for probate in Illinois. Specifically, whether an unrepresented individual can represent an estate as administrator in probate court.
While considering Daniel’s appeal, the appellate court first noted that nobody but a licensed lawyer can represent the interests of another in court. This well-established rule is codified in the Illinois Attorney Act. Pursuant to the Attorney Act, an individual may represent their own interests in court without a lawyer, but may not represent the interests of another (with limited exceptions for small claims cases). The court then reaffirmed its holding in Ratcliffe v. Apantaku where it found that serving as a representative of an estate constitutes representing the interests of another. Accordingly, a non-lawyer may not serve as the representative of an estate pro se because it constitutes a non-lawyer representing the interests of another in a legal proceeding. Therefore, the court ruled that a lawyer is required for all probate proceedings in Illinois and the probate court was correct when it dismissed Daniel’s pro se petition.
There Are Good Reasons for the Attorney Requirement
A Lawyer May Be Required to Get a Surety Bond
In most cases the representative of an estate is required to secure a surety bond to protect those entitled to estate assets. The bond is designed to protect heirs and creditors from mistakes or intentional misconduct by the representative. When the representative does not have a lawyer to guide them through the probate process the chance of mistakes is much higher. A higher risk of mistakes raises the risk that the surety company will have to pay out on the bond, so the company will charge a higher premium or refuse to issue a bond at all.
The Probate Court Does Not Tolerate Incompetence
Probate court, at least in Cook County, is not a place that tolerates amateurs. The judges are quickly frustrated with people that do not know proper court etiquette, the Code of Civil Procedure, the Probate Act, and local rules. Self-represented people are held to the same standard as lawyers and the judges expect them to have the same level of expertise. The judges will refuse to provide any sort of guidance when the unrepresented flounder and will simply tell (or order) them to hire a lawyer. The judges want their courtrooms to runs smoothly and do not want cases to become unnecessarily complicated.
The Representative Is Liable for Mistakes
Running an estate is like running a business. If the representative makes mistakes, heirs, legatees and creditors will likely sue the representative for their losses. Professional advice greatly reduces the chance that a mistake will be made and preventing the mistake in the first place is much less expensive than fixing it later.
Probate Is Extremely Complicated
Though the Small Estate Affidavit process is more complicated than it initially seems, it is nothing compared to the full probate process. I’ve written an article about the Illinois Probate Process, it’s about 11,000 words and it only briefly summarizes the more common steps in the probate process. The practice manual used by attorneys is over 1,000 pages long and we still have to reference the Probate Act, local rules, previous probate court decisions, and other areas of law when necessary.
Angry Heirs Are Common When the Process Is Delayed
Impatient and angry heirs are common in probate proceedings. Even the quickest of Illinois probate proceedings take seven months from the date a representative is appointed and in the age of instant gratification heirs get anxious.
Unless the administrator or executor is the only heir, the representative will have to deal with the expectations of the other heirs, questions about his or her competence and even attempts to remove the representative. In fact, several times a month I am contacted by an heir that is angry about the way the representative is handling the estate and wishes to have him or her removed.
Not only does a lawyer make other heirs less likely to question the competence of the representative. The lawyer can handle the heirs’ inquiries if necessary. Having a expert third-party with no intra-familial baggage to answer questions reduces the chance of major disputes and expensive litigation.
The Cost of Representation Is Reasonable
Most people have heard that probate is expensive. The cost of probate in Illinois has several different components including: filing fees, publication fees, professional fees (e.g. accountants); representative fees; and legal fees. In most cases legal fees will be the biggest cost of administration, so some representatives think they can handle the estate themselves.
The fear of legal fees is compounded by the inability of lawyers to provide a set fee or even a firm estimate. The reason for the difficulty is that estate administration is highly variable and one of the most important factors – family harmony – is unpredictable and beyond a lawyer’s control. A disgruntled heir can make things difficult, time-consuming and expensive.
Though it is impossible to account for in-fighting among heirs, if the estate is modest and everyone gets along, the cost of representation is less than people are led to believe.
Typically, the cost of representation in a modest estate with no complicating factors or fighting is in the $3,000.00 to $5,000.00 range in Cook County. The representative of the estate provides some of the fee at the outset and is later paid back from the estate. The remainder of the fee comes directly from the estate itself as a cost of administration. For a much lengthier discussion, read my article on the cost of probate in Illinois.
Lawyer-Represented Estates Close Faster
The duration of probate in a modest lawyer-represented estate with no complicating factors or fighting is typically seven months to a year. No estate can close in less than six months because that is the length of the creditor claim period. The smallest and most organized estate can close shortly thereafter.
In contrast, when the representative is acting without a lawyer her or she is likely to make many critical mistakes that can dramatically increase the length of the probate proceeding. Simply forgetting to publish notice to creditors or omitting key information in the notice can increase the duration of the proceeding by six months. The slower the process, the more frustrated the heirs and frustrated heirs are more likely to start expensive litigation.
Your Time Is Valuable
People inclined to do complex tasks themselves forget to take the value of their time into account. Few people enjoy learning probate law and being berated by judges and heirs, so serving as an unrepresented administrator or executor is another job, not leisure.
Though a probate lawyer likely charges more per hour than the representative’s hourly wage, he or she will be many times more efficient. A task that takes a lawyer an hour might take a non-lawyer 20 hours to research – if he or she even knows where to look. It makes little sense for a representative to spend hundreds of hours learning a skill that he or she will never have to use again.
The probate process may involve either a Small Estate Affidavit or full in-court probate proceedings. The affiant under a Small Estate Affidavit is not required to have a lawyer, but there are very good reasons for one to be hired and the cost is modest. Conversely, under the Mattson decision, a lawyer is required for all formal probate proceedings in Illinois and any petition to appoint a representative pro se is likely to be dismissed by the probate court.
Whether you are going to be an affiant under a Small Estate Affidavit or the representative in formal probate court, consulting with a lawyer as soon as possible is key to an orderly and cost-effective administration. Click here to schedule a free initial consultation with an Illinois probate attorney.
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