Probate is the process by which a deceased person’s estate is settled. This includes gathering all the decedent’s assets, paying debts, and distributing assets in accordance with a will or under the Illinois default rules called “intestate succession.”
When faced with the death of a loved one it is common to be confused about the Illinois probate process. Many people have not heard of probate at all, and those that have are usually under the impression that it is very slow and very expensive. In fact, one of the most common questions I am asked is whether probate can be avoided.
Though I have in-depth articles on many probate topics, I will try to answer many frequently asked questions here.
Who Needs Probate?
The formal probate process is not required in every estate. There are a few key factors that determine whether probate can be avoided:
- Is the estate large? Estates valued at over $100,000.00 must go through probate. Valuing an estate can be tricky as only “probate assets” are counted.
- Is there real estate? Generally, an estate that contains real estate must go through probate. This is the leading reason why probate is necessary in most cases.
- Are there contested debts? Probate provides a process for contesting claims. Without probate all debts must be paid.
- Will there be fighting? Fighting among heirs can drive up costs considerably, but sometimes it is unavoidable. If there are disputes as to heirship or the validity of a will, probate is necessary. If family relations are contentious generally, probate may be wise.
- Has someone tried to open a probate estate? If letters of office have been issued or a petition for letters is contemplated, then probate is necessary.
Even if probate is not legally required, it may still be wise. I encourage everyone to consult a lawyer for a formal evaluation on the necessity and wisdom of the formal probate process. Click here to read my full article on when probate is required in Illinois.
Where Does Probate Take Place?
Probate proceedings typically take place in the county where the decedent resided at the time of his or her death. There are exceptions to this rule, especially where out-of-state real estate is concerned.
Who Inherits Under Illinois Law?
Inheriting an estate can be a very complex question.
If a decedent did no estate planning and solely owned all of his or her assets, typically the decedent’s spouse and children and descendants of children inherit everything. If no spouse, children or descendants of children, the siblings and parents of the decedent inherit everything.
If the decedent had a will or a trust, the decedent’s assets will likely be distributed in accordance with that instrument.
For more information, you can read our full articles that address this topic:
Who Can Be the Estate’s Representative?
The “representative” of an estate is the global term for the person that is in charge of running the estate. There are more specific terms used depending on the type of estate. The “executor” is the representative of on estate where the decedent had a will. The “administrator” is the representative of an estate where there is no will. The “affiant” is the representative of an estate under the Illinois Small Estate Affidavit.
The basic rules for who can serve as representative are few. The representative must:
- Be a resident of the United States;
- Be at least 18 years old;
- Not be a convicted felon; and
- Be of sound mind and not a mentally disabled person.
The executor is named in the will and if the primary executor is unable or unwilling to serve, most wills list an alternate. If there is no primary or alternate executor able or willing to serve a representative will be chosen according to rules very similar to those for choosing an administrator.
An administrator is chosen in accordance with the priority rules set forth in the Illinois Probate Act. In general, the following people have a right to either serve as administrator or appoint someone of their choosing (in order of highest to lowest priority):
- Surviving spouse;
- Legatees (people who inherit under a will), with a preference to legatees that are children of the decedent;
- Children of the decedent;
- Grand-children of the decedent;
- Parents of the decedent;
- Siblings of the decedent;
- Nearest kindred of the decedent;
- The representative of the estate of a deceased ward;
- The public administrator;
- A creditor of the estate.
In the case of an affiant under an Illinois Small Estate Affidavit, the law does not place limiting language on who can act as affiant. That said, the affiant takes on full liability for mistakes and malfeasance, including the legal fees of those who successfully challenge their actions.
Do I Need a Lawyer?
It is always best to hire a lawyer whether or not formal probate is required. The probate rules are very complex and mistakes can be very difficult and expensive to fix. In some circumstances it is even possible for the person handling the estate to be liable to heirs and claimants for mistakes made in distributing the estate.
A common refrain in the legal community is, “you wouldn’t do surgery on yourself, don’t try to be your own lawyer.” Lawyers go to school for at least 7 years after high school and spend their career learning and practicing on the job. It is best to hire a professional for serious matters.
When Should I See a Lawyer?
The sooner, the better. We understand that grief and confusion often causes delay in getting the process started, but delay can cause greater costs and disadvantage the estate. Probate lawyers have lots of experience dealing with death beyond the probate process – they can guide the heirs and make sure nothing important is missed.
How Much Does Probate Cost?
It seems that the cost of probate in Illinois is one of the hardest questions to get an answer to. Lawyers are reluctant to quote rates or even provide an estimate because legal issues are extremely unpredictable and clients tend to assume their matter will always be on the low end of the range.
There are many factors that go into the cost of probate, notably:
- The size and complexity of the estate;
- Whether formal probate is required;
- The ability of the representative to accomplish tasks themselves; and
- Whether there will be fighting or litigation.
Though lawyers can predict the first two factors after a consultation, the second two are hard to know.
The costs of some estates are exaggerated when a lawyer’s office has to complete tasks some representatives could perform themselves.
Fighting, especially when fighting becomes full blown litigation is extraordinarily expensive and can even exhaust estates. Lawyers can almost never estimate the cost of a fight.
Because of this, most lawyers will not quote an ultimate cost at all, they will just quote their hourly rate (usually around $300 in the Chicago market) and tell the client the total cost is unpredictable.
With the disclaimer that estimates can be wildly off mark, I’ll try to do a little better than that. In a modest estate that requires formal probate and does not involve any fighting or other complications, the total cost of probate is generally in the $4,000.00 to $6,000.00 range. This isn’t all legal fees, most representatives (administrator or executor) are entitled to an hourly fee, and there are also court costs, publishing fees and fees to other professionals (notably accountants).
If formal probate is not required, the legal fee can be under $1,000.00.
Who Pays for Probate?
The cost of probate is an expense of the estate, so it is usually paid out of estate assets.
That said, the family usually has to put up an initial retainer for the attorney to begin work. These fees are typically reimbursed by the estate as a cost of administration.
How Long Does Probate Take?
All formal in-court probate proceedings take at least 6 months. This is because notice to creditors must be published and they have 6 months to assert claims against the estate. Though it is possible to distribute some assets before the end of the claim period in estates with assets that vastly exceed debts – early distributions are usually avoided.
Estates that are large or complex take more time. Estates that involve fighting or litigation can result in a lengthy probate process. Court is extremely slow by modern standards – your attorney will be able to provide a more accurate estimate after reviewing the estate.