Managing a complicated legal process is rarely at the top of anyone’s list after losing a loved one. Yet, someone must ensure the deceased’s estate is opened, distributed, and closed properly.

Typically, someone closely related to the deceased through blood or marriage takes the lead on managing the estate, with the assistance of a probate attorney.

Going through probate in Illinois requires attorney assistance. Contact Vantage Group Legal Services today to learn how we can match you with a lawyer whose skills and experience match your needs. We have a network of attorneys with the knowledge to lead you through the complicated probate process.

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What Is Probate in Illinois?

You manage the estate of a deceased individual in probate court. In precise terms, probate refers to the process of determining whether a will is valid. However, because you manage the estate through probate court, many refer to managing an estate as probate as well. 

What Happens During Probate?

Someone must initiate estate administration. If the deceased had a will, you bring it to court. People can challenge the will at this time. As long as the court determines the will is valid, you satisfy creditors and then distribute the estate property. 

If the deceased did not have a will, you also first use estate funds to satisfy valid debts. Then you distribute the remaining funds based on Illinois law. 

Once all debts are satisfied and funds are distributed, you close the estate.

What Passes Through Probate?

Not everything a person owns is distributed through the probate process. Only property that qualifies as probate property passes through the probate system. 

Probate property includes most things you might think of as property, like:

  • Real estate,
  • Intellectual property,
  • Vehicles, and
  • Personal property.

These types of property include no transfer upon death mechanism.

On the other hand, non-probate property includes things that can transfer ownership by their terms, like:

  • Joint bank accounts,
  • Shared mortgages,
  • Trusts, and
  • Life insurance.

Non-probate property does not have to pass through probate.

Illinois Probate Glossary

Probate involves legal jargon that rarely arises in other contexts, so we provide a brief glossary of terms below.

  • Administrator — An individual appointed to manage the estate of an individual without a valid will.
  • Affidavit of heirship — A legal document determining who a decedent’s heirs at law are.
  • Asset — Property an individual owns, including real, personal, and intangible property.
  • Beneficiary — An individual who benefits from a will or trust.
  • Codicil — A will addendum that may change or add to the terms of the will. 
  • Creditor — An individual or entity the decedent owed money to upon their death.
  • Decedent — A deceased individual.
  • Descendant — An individual who, through blood or adoption, is descended from the decedent.
  • Devise — A statement leaving specific property to specific individuals. It is also called a bequest.
  • Devisee — An individual left property through a devise. 
  • Estate — The cumulative property a decedent owned at death.
  • Estate administration — The process of satisfying estate debts and distributing estate assets. 
  • Executor — An individual named to manage a decedent’s estate in the decedent’s will.
  • Fiduciary — An individual or entity who owes duties to act in another’s interests. In the estate context, typically an administrator, executor, or trustee.
  • Heir — An individual who is entitled to share in estate distribution under the law of intestate succession.
  • Intestate — To die intestate means to die without a will.
  • Intestate succession — The laws that determine who a decedent’s legal heirs are.
  • Inventory — A list of all of the decedent’s assets and liabilities.
  • Issue — Typically describes an individual’s children. 
  • Letters of administration — Court appointment of an estate administrator.
  • Letters of office — Court appointment of the estate’s personal representative.
  • Letters testamentary — Court appointment of an executor.
  • Liability — Debt the decedent owes at death.
  • Non-probate assets — Property that transfers ownership without going through probate.
  • Personal property — Physical items an individual owns.
  • Personal representative — The individual who manages the estate, either an administrator or an executor.
  • Probate — The process of administering an estate. Also used to describe the process of determining a will’s validity.
  • Probate assets — Property that passes through a will or intestate succession.
  • Real property — Real estate, including residential and commercial properties.
  • Testamentary capacity — An individual’s legal capability to create a will.
  • Testate — To die testate is to die with a valid will.
  • Testator — The individual who created a will.
  • Will — A written document where the decedent directs what should happen to their property after their death. Must meet will formalities to be valid.

Please feel free to refer back to this glossary at any time.

The Step-by-Step Probate Process in Illinois

Although testate and intestate estates work slightly differently, they follow the same general process:

  • Prepare to open the estate;
  • Open the estate;
  • Provide notice to creditors, heirs, and beneficiaries;
  • Inventory assets and liabilities;
  • Satisfy estate debts and pay bills;
  • Distribute remaining estate assets; and
  • Close the estate.

Your lawyer will provide help and support at every step of the process.

Prepare to Open the Estate

You may begin preparing the estate before or after the decedent’s death. If you have time, go over your loved one’s wishes with them. Ensure you know where they keep their important documents, who they have named as executor, and obtain passwords for their financial accounts. 

Unfortunately, you do not always have the chance to prepare for the legal ramifications, much less the emotional ones of a loved one dying. Amid your grief, you may have to locate the decedent’s will if they have one and as many documents as you can recording their properties and debts.
After your loved one passes, contact a probate attorney as soon as possible. 

Decide on a personal representative

Work with your loved one’s other family and friends to determine who will serve as the estate’s personal representative. The representative may be the executor named in the will. But if the individual named as executor cannot or will not fulfill the role, someone else may be selected. If no one volunteers or agrees to serve as the estate’s personal representative, the court may appoint a public administrator.

Resolve time-sensitive matters

Address any time-sensitive matters as soon as possible. Ensure anyone who depended on the decedent receives the care they need, including minor children and disabled adults. If the decedent owned pets or livestock, ensure they are cared for. 

If necessary, arrange for power and temperature control where the decedent lived. This can be especially important to prevent pipes from freezing in the winter or if the decedent owned temperature-sensitive property.

If the decedent owned a business or regularly engaged in business or financial transactions, do your best to inform the entities involved of their death. 

Open the Estate

If you are the executor in the decedent’s will, you must bring the will to court within 30 days of the decedent dying or you learning you were named executor, whichever is later. To open the estate, the intended personal representative requests letters of office from the probate court. Along with requesting letters of office, you should also submit an affidavit of heirship. This document should explain who the decedent’s heirs are according to Illinois law.

More than one person may request letters of office. In that situation, the court issues letters of office based on who the law prefers and who shows they will fulfill the role best. Letters of office come in different forms depending on whether the decedent died testate or intestate: 

  • Letters of administration—decedent died testate;
  • Letters of administration with a will annexed—decedent died testate without a valid executor; or
  • Letters testamentary—decedent died testate with a willing and able executor.

The selected representative must sign an oath, creating a fiduciary obligation to the estate. The court may also require the representative to pay a bond to ensure the representative faithfully administers the estate. 

The representative may or may not be independent. An independent representative is subject to less court oversight. 

Inventory Assets and Liabilities

Once the representative is named, compile a list of all the decedent’s assets and liabilities. This may require you to search through physical documents and online accounts.

Provide Notice to Creditors, Heirs, and Beneficiaries

The representative must next notify the individuals or entities with an interest in the estate about the administration. The individuals with an interest include beneficiaries, potential heirs at law, and creditors. 

During the notice period, creditors can file claims against the estate. The representative is responsible for allowing or rejecting claims. They should allow any legitimate claims.

At the same time, interested parties may contest any will that has been presented for probate. Common reasons individuals may contest a will include:

  • Lack of testamentary capacity,
  • Undue influence, and
  • Improper will execution.

Based on the evidence offered, the court determines whether the will is valid. If the court concludes the will is not valid, a previous will may be probated or the laws of intestate succession may kick in.

Satisfy Debts and Pay Bills

After those interested in the estate have the chance to make claims against it, the representative should satisfy debts out of estate funds. If there is not enough for every creditor to be paid, the representative should follow priorities set by law. The representative should also pay estate taxes at this time.

Distribute Remaining Estate Assets

With creditors satisfied, the representative distributes the remaining estate assets. The assets must be distributed according to the terms of the will or the laws of intestate succession.

Close the Estate

At the end of the process, the representative sends an accounting to the interested parties. They must also file a final report with the court. After the court approves the report, it closes the estate.

Find a Probate Lawyer

Losing a loved one is not easy. Unfortunately, neither is navigating probate in Illinois. If you need assistance managing a loved one’s estate, reach out to Vantage Legal Group. We can match you with an experienced, dedicated attorney who can guide you through the probate process.

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