In Illinois, if a loved one passes away without a will or a trust in place, he or she has died “intestate.” Depending on the size and assets of the estate, probate may or may not be needed.
Probate is a court proceeding where the judge appoints an “administrator” to the estate. If a will did exist and was appropriately filed, then the judge would probably appoint the will’s “executor.” The only difference between an administrator and an executor is that one is appointed intestate and the other is designated by a will. The administrator is responsible for paying all just debts and taxes, responding to claims on the estate, and concluding the final affairs of the deceased that includes distributing the assets of the estate.
Sounds simple, right?
Well, in today’s world, probate can be anything but simple. And unlike New Jersey, where it’s quick and cheap, in Illinois probate is long and costly. For example, the first thing one has to do is to get into court, which requires completing a petition that nominates one person as the administrator. What if Jack’s evil twin, Jill, wants to b administrator, too? Hopefully, Jill knows the slayer statute would keep her from collecting if Jack were to meet an untimely demise.
The next to do is provide a list of all the heirs to the judge and prove – with birth and death certificates, and divorce decrees – where the heirship line has been broken. What if Thelma’s mom had 2 husbands and 2 children, Thelma and Louise, but Thelma could only find one set of divorce papers – the set involving the divorce from Louise’s father? And that’s all she’s going to find because Thelma’s mom and her dad were in a common law marriage in Kansas before she moved to Illinois.
Let’s say the heir hurdles have been successfully jumped and you’ve been named administrator of grandma’s estate. Next we must notify any heirs and creditors, whether known or unknown, that the estate has been opened. What if Grandma forgot to mention that she borrowed $10000 from Uncle Charlie last Christmas to pay for everyone’s gifts and Uncle Charlie accepted a promissory note with the house as collateral?
What if there’s no house but you find that Grandma had 12 different accounts in 12 different financial institutions totaling more than $100,000? Get the petition ready and btw – Illinois does not allow pro se appearances in probate.
It is because our families are different, mobile, and complex that trusts are often recommended for individuals in Illinois. However, so we have it on record, the following are steps for opening probate in Illinois:
- Petition the court
- Notify eligible potential administrators and obtain consent or waivers from them
- Pay an oath and bond on the estate’s personal property
- Prove heirship
- Appear in court and receive letters of office
- Notify known and unknown heirs and creditors
- Take an inventory of the estate assets
- File the inventory with surety company and heirs’ fiduciaries, e.g., guardians or conservators
- Respond to creditor claims
- Distribute assets after 6 month creditor claim period has ended
The entire process from opening to closing probate can take anywhere from 9-14 months and perhaps why the steps involved in establishing a trust should be considered the “probate-anonymous” program.