Illinois Probate Lawyers: Get the Assistance You Need

We Work To Give Our Clients Peace Of Mind In Probate Court

How does probate work in Illinois?

When conducting a probate administration, it is always wise to choose an attorney who has experience in the matter and can explain the process. At the beginning of the probate matter, an executor and family members will traditionally meet with the attorney and the attorney will need to gather important information such as signatures on opening documents, dates of birth, social security numbers, and addresses for heirs and beneficiaries.

In modern times, these meetings may be less formal, and meetings may be conducted by phone or zoom. Attorneys often like to meet with family members and beneficiaries to gather information and identify familial relationships and any issues that may arise throughout the probate process.

Often, attorneys will meet families with issues regarding distribution and even spending funds they are not entitled to. Causes of action and matters involving probate and an estate can be filed within the probate court to recover the appropriate funds and deliver them to the rightful beneficiaries.

It's important to have an open and honest conversation with your attorney about your concerns and fears, and to cooperate fully. Although these matters are complicated to deal with after the passing of a loved one, emotions must be kept calm and collected for work to be conducted properly. Representing clients in court may be difficult if emotional choices are made or if there is risk that information is not complete.

When you meet with the attorney on your matter, you will need to identify whether any of the following items are applicable within the matter:

• A valid will and access to the will;
• A trust and access to the trust;
• Information regarding the executor or trustees in the matter;
• Other known estate planning documents;
• Identification of assets within the estate;
• The location and whereabouts of known assets;
• Access to the last known tax returns; and
• Information regarding personal documents or business affairs involved in the estate;

After the attorney's retainer has been paid and the necessary documents have been signed, the attorney can start working on your matter. It is important to identify all of the above-listed issues as clearly as possible for the attorney on your matter.

The Chicago Family Attorneys, L.L.C. attorneys have the knowledge and experience needed for your probate matter. Call us today at (312) 971-2581, or book a free consultation online by clicking here. Hours are subject to change and appointment times for new consultations may vary.

What is the Illinois Probate Act?

The Probate Act of 1975 sets forth the rules and procedures for administering estates. The Probate Act is codified in Chapter 755 of the Illinois Compiled Statutes.

In Illinois, probate law is an area of law that covers a variety of different cases and court proceedings. The Illinois Probate Act is a comprehensive statute that sets forth the rules and procedures that must be followed in all probate proceedings.

The Four Types of Probate Cases

Four main types of cases are typically covered under the Illinois Probate Act: estate administration, trust administration, guardianship, and conservatorship.

Estate administration is winding down an estate after a person has passed away. This includes gathering the deceased person's assets, paying any debts and taxes owed, and distributing what is left to the beneficiaries named in the will.

Trust administration is similar to estate administration but applies to trusts rather than estates. Trusts are created when someone transfers property to a third party to hold for the benefit of another person or group of people. Trustees are responsible for managing the trust property and distributing it to the beneficiaries according to the terms of the trust agreement.

Guardianship is a legal proceeding in which a guardian is appointed by the court to care for a minor or an adult who cannot care for himself or herself because of mental illness, disability, or age. Guardians have broad authority over the person they are appointed to care for, including making decisions about healthcare, education, and finances.

Conservatorship is similar to guardianship, but it applies to adults who cannot manage their financial affairs because of disability or age. Conservators are appointed by the court to manage the financial affairs of adults under their care.

All of these above mentioned cases are included in the Illinois Probate Act. These matters may be filed with the clerks office or through an online program implemented due to Illinois Supreme Court Rules. Over the last few years, the chief judge of each county has worked with the Illinois Supreme Court and several filing companies to allow for online filings.

Although it is always advisable to use an attorney for your matter, you may be able to file appearances or other documents for court approval online. The software is fairly simple and they accept online processing of credit cards and other forms of payment. Contact your local county court if you are in dire need of filing immediately to preserve the ability of gaining notice on a case or if you have been ordered by the court to file an appearance.

Once again, before filing, it is always advised that you speak to a licensed attorney and retain services to protect your rights.

How do I start a probate of an estate case in Illinois?

The Probate Act of 1975 sets forth the requirements for beginning a probate matter in Illinois. The Probate Act is located at 755 ILCS 5/. To start a probate proceeding, you must file a petition with the court. The Probate Act requires that certain information be included in the petition, such as:

• The name, age, address, and occupation of the decedent;
• The date of death of the decedent;
• The place of death of the decedent;
• Whether the decedent was married and if so, the name and address of the surviving spouse;
• The names, addresses, and relationships of the next of kin of the decedent;
• A general description of the decedent's property; and
• The name and address of the person nominated as executor or independent administrator in the will, if any, or, if there is no will, the names, and addresses of the persons entitled to Letters Testamentary or of Administration.

The Probate Act requires that certain documents be attached to the petition. These documents include:

• The original will, if any;
• A certified copy of the death certificate; and
• An affidavit of heirship, which sets forth the relationship of the surviving spouse or next of kin to the decedent.

You must also have someone serve a notice on all interested parties. The Probate Act defines "interested parties" as persons who would be entitled to inherit property from the decedent if he or she had died without a will.

Once the petition and required documents have been filed with the court, the court will review the petition to ensure that it has been properly completed and that all required documents have been attached. If everything is in order, the court will set a date for a hearing on the petition.

The court will appoint an executor or independent administrator for the estate at the hearing. The executor or administrator is responsible for paying the decedent's debts and distributing the estate's assets to the beneficiaries.

If there is a will, the executor or administrator must follow the instructions outlined in the will. If there is no will, Illinois law sets forth the order in which the estate must be distributed.

The Illinois Probate Act requires that interested parties be given notice of the hearing on the petition. The notice must be served at least ten days before the hearing. The notice must state the time and place of the hearing and the court's address.

Service of Process in a Probate Matter

In a probate proceeding, service of process is governed by Rule 2-203 of the Illinois Probate Court rules. Rule 2-203 sets forth who must be served with notice of a probate proceeding and how service must be made.

All interested parties must be served with notice of a probate proceeding. Interested parties include:

• The decedent's surviving spouse;
• The decedent's next of kin;
• The persons named as executor or independent administrator in the will, if any; and
• The persons entitled to Letters Testamentary or of Administration if there is no will.

Service of process must be made by personal service, certified mail, or publication.

Personal service means that the notice must be hand-delivered to the interested party. The person who serves the notice must be at least 18 years old and cannot be a party to the probate proceeding.

If an interested party cannot be found, then service may be made by certified mail. Service by certified mail is complete when the interested party signs for the certified mail.

If an interested party still cannot be found, then service may be made by publication. Service by publication is complete when the notice is published in a newspaper for three consecutive weeks.

You should contact an attorney to discuss your rights and options if you have been served with notice of a probate proceeding. Probate proceedings can be complex and confusing, and it is essential to have an experienced attorney represent your interests.

Probate is the legal process of transferring a person's assets after death. Probate also includes settling any debts the person may have. Probate is overseen by the probate division of the circuit court.

If the deceased person left a will, the executor named in the will is responsible for probate of the decedent's estate. If there is no will, the next of kin is responsible for the estate to go through the probate process. The executor or next of kin must file a petition with the Probate Court to open Probate.

Filing Wills and the Importance of Filing Promptly Under Illinois Probate Laws

If you have an original will of a deceased person or family member, you must file it with the circuit court clerk in the county where the person lived within 30 days of learning of their death. This same rule applies to banks and individuals with access to safety deposit boxes. Often, a decedent's valuables and original will can be found in a safety deposit box. If a will is not filed within 30 days, any interested party can file it.
Under ILCS 755 ILCS 15/1 of the Illinois Probate Act, if you don't have access to a deceased family member's security deposit box, you'll need to provide an affidavit to the bank or safe-deposit box company. This affidavit should be signed by an interested person (named executor, surviving spouse, co-renter of the box, adult descendant, or sibling of the decedent) and should state that the box contains the original will and/or documents for burial arrangements.

If you are an executor named in a will or next of kin of a person who dies without a will, and you fail to file the original will with the Probate Court, you may be held accountable for any damages that result from your failure. Additionally, if a will is altered or destroyed, or someone fails to file a will within 30 days, they can be charged with a Class 3 Felony under Illinois law.

Call Chicago Family Attorneys, L.L.C. law offices at (312) 971-2581 if you need an experienced and knowledgeable probate attorney to assist you. You can also book an appointment online by clicking here.

An Executor's Responsibilities

If a will has named you the executor, you have the right to choose whether or not you would like to take on the responsibility. Often a power of attorney that has been appointed by the deceased previously will be the executor named in a will or trust.

To determine who has been named as the executor of the estate, it is important for the next of kin to check the will carefully. If you have chosen to act as the executor, you will be responsible for managing the decedent's estate during probate. The Executor's duties include:

• Filing the original will with the Probate Court and having any interested party served with notice of the probate proceeding;
• Identifying, inventorying, and appraising the decedent's assets;
• Paying valid debts and expenses of the estate;
• Managing and investing estate assets;
• Filing required tax returns; and
• Distributing the remaining assets to the decedent's beneficiaries.

The Executor must act in good faith and follow the terms of the will. The Executor is entitled to reasonable compensation for their services. An experienced Probate attorney can advise you of your rights and options as an Executor.

Intestate Probate: Probate of An Estate Without a Will

The definition of intestate probate is when a person dies without having made a will, or if the will is determined to be invalid. In this case, state intestacy laws will determine how the decedent's property will be distributed.

The Probate Court has jurisdiction over intestate estates. The Probate Court will appoint a personal representative to administer the estate. The personal representative's duties are similar to those of an executor in a matter with a will.

The probate of an intestate estate is similar to the probate of a will, but there is not an executor named in the decedent's will. The next of kin manage the decedent's estate during probate. The next of kin's duties are similar to those of an executor. The next of kin must:

• File a petition with the Probate Court to open Probate;
• Identify, inventory, and appraise the decedent's assets;
• Pay valid debts and expenses of the estate;
• Manage and invest estate assets;
• File required tax returns; and
• Distribute the remaining assets to the decedent's beneficiaries.

The next of kin must act in good faith and following Illinois law. The next of kin is entitled to reasonable compensation for their services. An experienced Probate attorney can advise you of your rights and options as next of kin.

Protect Your Estate, Inheritance, or Real Estate With The Right Law Firm

Distribution of Assets to Family Members In Intestate Probate Matters

Illinois' intestacy laws favor close family members when distributing a decedent's property. The order of priority is as follows:

1. Spouse;
2. Children;
3. Parents;
4. Siblings; and
5. Other relatives.

The State of Illinois follows a distribution method called "Per Stirpes". This means that the decedent's property is distributed to his or her surviving descendants.

If a person dies leaving a spouse but no children, the spouse inherits everything. If a person dies leaving a spouse and children, the spouse does not receive everything. The children will get half of the estate when they turn 18 and the spouse will receive half of the estate. If the decedent passes away without a spouse, but they have children, then the entire estate will transfer to the children until they turn 18.

Guardianship of an estate will need to be opened for the children until they are 18 and trust will need to be established for them until they reach the majority age of 18. A trust for the decedent's minor children will need to be established to protect and manage the assets left to them.

A Probate Court will appoint a guardian of the estate for any minor children who inherit property from the decedent. The Probate Court may also appoint a guardian of the person for any minor children who are deemed to need a guardian.

A person who dies leaving a spouse and children from another relationship will have their estate distributed in the following way:
The spouse will inherit the first $150,000 plus half of anything over that amount; and the children will inherit the rest of the estate. Section 5-2 of the Probate Act of 1975 sets forth Illinois' intestacy laws.

If you are a surviving spouse or next of kin and need assistance with opening an intestate proceeding, call Chicago Family Attorneys, L.L.C. at (312) 971-2581 to speak with an experienced probate attorney today. You can also book an appointment online by clicking here.

Small Estate Probate: An Alternative Form of Probate

A small estate is an estate from a decedent that is valued at less than $100,000, not including the value of the decedent's real property. Probating a small estate in Illinois can be done by an affidavit. This is a simpler and cheaper process than traditional probate.

To probate a small estate by affidavit, the personal representative must file an Affidavit for the Collection of Personal Property with the Probate Court. The Affidavit lists the decedent's assets and debts and states that all debts will be paid from the estate's assets.
The Affidavit must be filed within 6 months of the decedent's death.

If the Probate Court is satisfied that the Affidavit was prepared correctly and that all debts will be paid, it will issue an Order authorizing the personal representative to collect and distribute the estate's assets.

Probate through a small estate affidavit is a simplified probate process available when the value of the decedent's estate is less than $100,000. To use this process, the Executor or next of kin must file an Affidavit for Small Estate with the Probate Court. The Affidavit for Small Estate must:

• Be filed by the Executor or next of kin;
• Include a list of the decedent's assets and their value;
• Include a statement that the value of the estate is less than $100,000;
• Be signed by the Executor or next of kin under oath; and
• Be notarized.

Once the Affidavit for Small Estate is filed, the Probate Court will issue an Order authorizing the Executor or next of kin to distribute the decedent's assets. The Executor or next of kin must then:

• Pay valid debts and expenses of the estate;
• Distribute the remaining assets to the decedent's beneficiaries.

There are several different forms of Probate in Illinois.

Summary Administration:

Under 755 ILCS 5/9-8 and 5/9-9, summary administration is a form of probate in Illinois that allows for the immediate distribution of an estate's assets. This type of administration is available if the estate's gross value is $100,000 or less.

If you want to file a petition for summary administration, the court must establish heirship and admit the decedent's will (if any) to probate. The court will also require the consent of all heirs and legatees to summary distribution.

The surety bond secures a proportionate refund of the distribution if any claims against estate assets are discovered later on, and expenses of recovering the distribution must be paid, including attorneys' fees. In addition, notice must be published, and proof of publication must be filed with the court clerk before the hearing date.

If the court finds that summary administration is appropriate, it will issue an order of distribution. Once this order is entered into the court records, the personal representative can begin distributing the estate's assets to the rightful heirs and beneficiaries.

If you want to file a claim against an estate, file your claim before the hearing on the summary administration petition. If you don't file a claim by then, you may be able to file a claim in an alternative manner.

The publication requirements for summary administration differ from those for filing a claim under §18-3 of the Probate Act. The six-month bar usually applies to claims but doesn't apply in this case. The two-year bar that applies to all claims in summary administration will apply instead.

Often, summary administrations are used if a small estate affidavit does not accomplish the tasks required for distribution. For instance, some banks and other institutions may require a court order to administer the estate as requested. A summary administration would meet the needs of the bank or other institution since a court order is issued through this expedited probate process.

A summary administration ultimately allows for the probate court to quickly and easily administer the assets of the deceased with minimal court supervision. This process can be particularly useful when there are assets that an be easily transferred and if the total assets are not of a high value.

The maximum threshold is defined by Illinois probate law. Summary administration can save time and reduce legal fees for the estate, making it a cost-effective option for estates that qualify based upon assets and debts.

Ancillary Probate:

Ancillary Probate is a type of probate in Illinois that may be necessary when a decedent owns property in another state in addition to Illinois. In order for an Illinois Probate Court to have jurisdiction over out-of-state property, an ancillary proceeding must be filed.
The ancillary proceeding will follow the same general process as a traditional probate proceeding. However, there may be additional steps that need to be taken in order to comply with the laws of the state where the property is located.

Certain Assets and Estate Planning tools will allow beneficiaries to bypass probate.

How do you avoid probate in Illinois?

Probate can be avoided in Illinois courts in several ways. One way is to create a trust and name a trustee to manage your assets. Another way is to often have a joint owner your assets, but this is not a foolproof method.

Usually, when a decedent passes away, the asset will pass directly to the joint owner without going through probate, but this may not always be the case. Another way to avoid probate is by giving away all of your assets during your lifetime, but this is not an effective or easy method of avoiding probate.

Revocable Trusts and Irrevocable Trusts

A common way for estates to avoid probate is through the use of estate planning. Estate planning can encompass wills, trusts, and other estate planning documents.

A will normally does not allow for an estate to avoid probate, but it does outline which heirs and beneficiaries are to receive which assets and how those assets are to be distributed.

Trusts in Illinois generally avoid probate and save clients and their heirs several thousand dollars in the event that the trustmaker passes away. This is a large consideration in creating a trust. Irrevocable Trusts and Revocable Trusts allow for the estate of a deceased to transfer property easily and efficiently without the need of the court.

In the event that a trust is deemed to be improper or voidable, a trust can be challenged in court and the probate court may step in to challenge the language within the trust. If certain assets were not recognized within the trust, then a pour-over will, which is within a trust, would allow for the probate court to probate the assets that were not acknowledged.

Trusts are the best way for an estate to avoid probate and save money in Illinois. They offer flexibility and ease instead of a prolonged court proceeding.

Bond In Lieu of Probate

If the heirs fo the estate are expected to inherit real estate property from the deceased's estate, an option to avoid probate and transfer property with the assistance of a title company is called a bond in lieu of probate.

A bond in lieu of probate is fairly straightforward and easy to gain so long as your probate attorney knows the process.

A bond in lieu of probate essentially serves as a guarantee to the title company that the heirs will take responsibility for any debts or claims against the property. This allows the property to be transferred without the need for a formal probate process. It is important to note that not all states allow for bonds in lieu of probate, so it is crucial to consult with a knowledgeable probate attorney to determine if this option is available in your state.

Overall, avoiding probate can save time and money for your loved ones after you pass away. By exploring different options such as joint ownership, gifting assets during your lifetime, or utilizing a bond in lieu of probate, you can ensure a smoother transition of your assets to your heirs. It is always recommended to seek professional legal advice to determine the best course of action for your specific situation.

For a bonding lieu of probate in Illinois to occur, there are several requirements that must be met including:

Affidavit of Heirship: An affidavit of heirship will need to be presented to the title company outlining who is an heir of a

Proof of Death Certificate: A verified duplicate of the death certificate is required to prove that the deceased passed away and that the property is eligible to be transferred.

Title Insurance Firm Stipulations: Working with a title insurance company is necessary to meet the specific stipulations for a bond in lieu of probate, which might encompass various indemnity agreements or supplementary documentation concerning the estate’s assets.

Registry with County Recorder: The bond, along with all pertinent documentation, must be recorded at the county recorder’s office in the locale where the property resides.

Hiring the right probate attorneys is needed to ensure that Illinois probate laws are met as well as the requirements of the title insurance company. The attorneys at Chicago Family Attorneys, LLC have the experience needed to assist you with a bond in lieu of probate or the probate of an estate. To speak with a local probate attorney near you, call our law firm at (312) 971-2581 or book a free consultation online.

What are the fees associated with a probate case in Illinois?

The court fees associated with probate in Illinois vary depending on the size and complexity of the estate and where the case is filed. Generally, the court fees to open probate, are around $300 to $500 and you will need to consider the fees for service of process.
Attorney fees are usually based at an hourly rate for services or a flat rate depending upon the complexity of the estate and the work that needs to be done. Other fees may include an appraisal, surety bond, and publication fees.

What is the definition of an estate in probate court?

An estate is everything a person owns at the time of death. This includes real estate, personal property, cash, stocks and bonds, and even life insurance policies. Probate is the process of administering a deceased person's estate.

Probate is necessary even if the deceased person leaves a will because there may be debts or taxes that need to be paid out of the estate. Probate also may be necessary if the deceased person did not leave a will (an intestate estate). In this case, state law will determine how the estate is divided among the heirs.

What is the definition of probate?

Probate is the legal process of distributing a decedent's assets to their rightful heirs. Probate can be a complex and confusing process, particularly if you are named as an executor or administrator of an estate.

Probate is the process by which a decedent's estate is administered. Probate generally includes four steps:

• Opening Probate;
• Identifying, inventorying, and appraising the decedent's assets;
• Paying valid debts and expenses of the estate; and
• Distributing the remaining assets to the decedent's beneficiaries.

Dealing with probate can be complicated and overwhelming, especially if you are the executor, administrator, or a concerned beneficiary. Contact our office at (312) 971-2581 to speak with a knowledgeable probate attorney today.

Frequently Asked Questions About Probate in Illinois

The following FAQ will provide you with some basic information about probate in Illinois.

Can the estate pay for the attorneys fees in a probate case?
Typically, the estate or executor will pay for the attorneys in a probate case. The estate executor is responsible for paying all estate debts, including attorney's fees. In some cases, the court may order that certain assets be used to pay attorney's fees and other costs associated with probate.

It is up to your attorney to decide if they will accept payment from the estate. They will typically take into account the time, effort, and potential risk of not being able to collect payment.

How long does the probate of an estate take in Illinois?
The amount of time that it takes to Probate an Estate in Illinois varies depending on the size and complexity of the estate and where the case is filed. Probate can take anywhere from a few months to several years to complete.

What are some common issues that arise during probate?
Some common issues that can arise during probate include creditors' claims, disputes among heirs or beneficiaries, challenges to the will, and tax issues.

If you are having any of these problems, we suggest reaching out to a skilled attorney for assistance with probate. An experienced attorney can guide you through the probate process.

What is the difference between an estate executor and a trustee?
In Illinois, an executor is someone named in a will to carry out the instructions of the person who made a will. A trustee is named in a trust and appointed to carry out the wishes of the individual or individuals who made a trust.

How are life insurance proceeds divided in probate matters?
Life insurance policies and the proceeds that are derived from them are paid to the named beneficiary on the policy and are not subject to probate.

How are retirement benefits divided in probate matters?
Retirement benefits, such as pensions and 401(k)s, also are not subject to probate. The account owner designates a beneficiary when the account is created. The retirement accounts are paid directly to the designated beneficiaries when the account owner dies.

These beneficiary designations occur when the deceased has a beneficiary named before they pass away. Depending upon whether or not an estate plan such as a living trust was in effect will determine how the deceased person's estate and assets are distributed.

If you need assistance in determining how an estate should be divided, please contact our law firm in downtown Chicago and speak with us regarding your matter. Hiring the right lawyer for your case can significantly impact your matter.