What is Probate and Why Do You Need an Attorney's Help?

Last Will legal probate document and pen

Probate is the legal process of settling a decedent’s estate. This includes collecting their assets, paying their debts, and distributing their remaining assets. The process is made easier when the decedent has a Will because it tells the executor how they want their assets and liabilities managed.

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There are five main steps in this legal procedure that is sometimes supervised by a court. First, the executor routinely must prove in court that the Will is valid. Next, they must identify the deceased person’s assets and inventory them. The assets then have to be appraised and the taxes and debts paid. Finally, the remaining property is distributed as the Will directs or according to state law if there is no Will.           

In Illinois, there is a process for Probate whether or not there is a Will. Whether or not it is necessary depends on how she or he held title to her or his assets and not whether or not there is a valid Will. Only assets the decedent owned solely and if the total probate assets are worth greater than $100,000 does the Will need to be probated. Many assets do not need to go through this process such as a living revocable trust, retirement accounts or payable-on-death bank accounts when there is a beneficiary designated, or transferring real estate subject to a transfer-on-death deed in Illinois.

The process gets started when the executor files the Will with the court and files several documents opening a case. An executor usually hires an attorney to draw up and file the papers. Notices are sent to the decedent’s heirs and published in a local newspaper to let creditors know. Known creditors receive notice from the executor and have six months to file claims or they miss out.

Most cases are conducted under either independent or supervised administration. Independent administration means that the executor has authority over the estate assets without having to get court approval first. Supervised administration means he or she must get court approval before taking any actions.

Court battles can erupt, delaying the settling of the estate. In closing the case, the executor will file accounting showing the assets, income produced by the estate, for example, and how assets were distributed. Finally, the executor secures receipts from the beneficiaries who received assets and submits a final report. Unless there are serious disputes about the Will or the assets, the process generally takes about a year to complete.            

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