Sunday, June 7, 2009

What is Probate in Illinois?

What is Probate Court?

Probate is a process for beneficiaries to obtain the transfer of ownership of assets after the owner has died when the deceased has not designated who the rightful owner of their asset(s) will be. In Illinois, a person who does not have a will or trust must undergo a process called intestate succession. The state of Illinois has a generic formula, which determines whose the rightful owner of a deceased property if they failed to leave a will or trust. Thus, the State of Illinois makes a presumption that you would want to give your assets to your spouse and children equally if you have not left valid legal instructions upon your death. For example, Ann Smith deceased on January 5, 2006 with no spouse and five children. Ann Smith had a total of six children during her lifetime and thus, one child is deceased upon her death. This sixth child had one son, named John. If your spouse is deceased, the State of Illinois presumes that the deceased person would have wanted their children to share in their estate equally.

Therefore, the probate court would conclude that Ann Smith’s beneficiaries are the five children and the one grandchild. Each child and grandchild would share equally (all of the assets not designating a specific beneficiary).

In Illinois, if one child is deceased, it is assumed that the deceased person would want the deceased child’s portion of the inheritance to go to their children equally.
Consequently, probate court is long, time consuming, and expensive. Probate costs typically are 3 to 8 percent of the gross value of one’s estate. Thus, an estate worth $500,000 would pay probate costs such as attorney’s fees, accounting fees, appraisal fees, and court costs ranging from $15,000 to $40,000.

In Illinois, estates with a value of under $100,000 in assets may file a small estate affidavit, which states that the deceased person’s estate is under $100,000 and thus, avoids probate court.

Why Do Wills Not Avoid Probate Court?

Many people falsely believe that drafting a will avoids probate court. A will must be probated in Illinois. Typically, the probate process is called an independent administration, which means that the executor (person who is appointed to administer the will/estate) must file a report at the end of the probate process to explain to the court how the executor spent the assets of the deceased’s estate. An independent administration probate is a simpler probate process, but nevertheless, the process is time consuming, frustrating and costly.

How Do I Avoid Probate Court?

A proper estate plan involving a revocable living trust (Trust) that is funded is an easy way to avoid probate court. A Trust may be easily amended, altered or revoked if it is revocable. A Trust is a legal device, which transfers ownership of property from an individual’s name to a trust’s name. Thus, a trust is essentially a legal contract that creates a fictional person to own their property other than themselves. The key with a Trust is to proper fund the trust with your assets. For example, Ann Smith sets up a Revocable Living Trust but fails to transfer her bank accounts, her life insurance policy, and her home into her Trust name from her individual name. Consequently, this Trust was not properly set up and the assets still must undergo probate court. The good news is with proper estate planning, probate court and the family headaches associated with probate court are easily avoidable.

Does Robertson Law Group, LLC handle
probate and trust administration?

Yes, our attorneys are experienced and compassionate when working with families when their loved ones have not properly planned their estates. In fact, the legal process is fairly simple but time consuming and trying on families. We are experienced at handling the unique circumstances on working with different family members and executors that must probate their loved one’s estates. Many of our clients choose our law firm to be their corporate trustees and administrators of their estates to avoid family conflicts, create a smooth transition upon their death, and preserve their assets. Please call us for a free consultation.

Sean L. Robertson is a Wealth Preservation Attorney that concentrates in Wills and Trusts, Probate and Guardianship, Business Transactions, and Asset Protection law. Sean is Principal of Robertson Law Group, LLC and can be reached at 312-498-6080 or

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