All attempts are made to provide accurate information. However, nothing contained herein should be relied upon as legal advice or legal authority. Nothing contained herein should be substituted for the advice of competent legal counsel.
What is Probate and How Does it Work?
Probate & Estate Administration
Probate simply means to prove your will and settle your probate estate (assets that are not in a living trust or do not pass by reason of law or contract, i.e., life insurance, joint property, pension plans, etc.,) in a court of law. A judge makes sure that your heirs are notified, your debts and taxes are paid, and your estate is distributed according to your will, if you have one (testate), or if you die without a will (intestate) according to state law. There are four probate options available to settle your probate estate in Illinois. The options available to you are determined by following: the value of your probate estate, whether your probate estate owns real estate, and whether your heirs are satisfied with the administration of your probate estate. The costs involved depend on how much time and effort is spent on settling your probate estate. If your affairs are in order less time is needed to settle your probate estate. To reduce probate costs, keep accurate and up to date records of your creditors, heirs, receivables and the locations of all assets in your estate.
- The amount of work and formalities required are nearly the same as in independent administration. However, the benefits are dramatically reduced.
- Creditors have two years to file a claim against your estate. Under independent administration creditors only have six months to file a claim.
- Real estate cannot be administered under summary administration, but is included in determining the value of your estate. A bond is required to sell real estate within two years of death (the claims period).
- Unanimous consent of all heirs and legatees is required.
- A separate civil suit is necessary to enforce an order issued by the probate court during summary administration.
- A bond is required from every distributee to insure that claims are paid within the two year statute of limitations.
- Controversies among beneficiaries are not resolved. Summary administration anticipates the cooperation
- of all beneficiaries and does not offer a forum to resolve disagreement.
Four options to settle your probate estate.
Option #1. Small Estate Affidavit.
If you own no real estate and the gross value of your estate is $100,000 or less, probate may altogether be avoided with a small estate affidavit. A small estate affidavit allows your personal representative to state under penalties of perjury that the statutory requirements for the affidavit are met and that your estate can then be distributed without formal probate proceedings.
Option #2. Summary Administration.
Summary administration allows your estate to be distributed if it is $100,000 or less and a small estate affidavit cannot be used. For example, if a bank or other institution refuses to honor a small estate affidavit, summary administration may be used instead. Summary administration allows for the distribution of assets within 30 to 45 days of death if all interested parties are agreeable and fully aware of your estate.With the consent and appearance of all heirs and legatees, much of the probate process may be accomplished during the first court appearance. If no one files claims or objections, the court orders the distribution of your estate.
However, few estates qualify for summary administration and even if they would, the following disadvantages outweigh the advantages and therefore, Independent Administration is recommended:
The amount of work and formalities required are nearly the same as in independent administration. However, the benefits are dramatically reduced.
Creditors have two years to file a claim against your estate. Under independent administration creditors only have six months to file a claim.
Real estate cannot be administered under summary administration, but is included in determining the value of your estate. A bond is required to sell real estate within two years of death (the claims period).
Unanimous consent of all heirs and legatees is required.
A separate civil suit is necessary to enforce an order issued by the probate court during summary administration.
A bond is required from every distributee to insure that claims are paid within the two year statute of limitations.
Controversies among beneficiaries are not resolved. Summary administration anticipates the cooperation of all beneficiaries and does not offer a forum to resolve disagreement.
Option # 3. Independent Administration.
Independent administration is the newest and most popular form of probate in Illinois and has been available since 1980. It removed the hassle and expense associated with the probate process and made probate in Illinois a viable alternative to a living trust. Unless an interested party objects or your will specifically forbids, independent administration may be used to settle your estate. It grants your legal representative significant powers and allows for the administration of your estate with minimal publicity and court involvement. In most circumstances only two court appearances are necessary (one to open your estate and one to close it). A judge makes sure that the terms of your will are complied with and that all your debts are paid. Best of all, creditors of your estate only have six months to file a claim (instead of a minimum of two years under a living trust). The entire process should take 6-10 month and be inexpensive if the executor does what he or she is designated to do.
Option #4. Supervised Administration.
Supervised administration involves the probate court in all aspects of the administration of your estate and is most often associated with the “bad probate” of past. Supervised administration usually takes longer, is much more costly, and requires considerably more work by the attorney because issues are often contested.
Myth #1. Probate Is Very Expensive.
Before January 1, 1980, probate in Illinois was indeed an expensive and cumbersome process because the only probate option available was “Supervised Administration.” Supervised administration means that for each and every matter, court approval is needed to administer your estate. Since attorneys are usually involved in every aspect of the process, supervised administration can be a lengthy and expensive ordeal.
On January 1, 1980, the legislature overhauled the Illinois Probate Act with the addition of “Independent Administration.” Independent administration alleviates the time and expense required in supervised administration by allowing the personal representative of the probate estate to administer the estate with minimal court involvement. What was once an expensive and time consuming nightmare was transformed into a relatively inexpensive straight-forth procedure. If everything goes according to plan, only two court appearances by the attorney are necessary, creditors only have six months to file a claim, and a judge makes sure that the terms of your will are carried out. This is a tremendous benefit to you.
Myth #2. Probate Serves No Purpose.
Quite the opposite is true. The court’s extensive experience in probate matters and probate procedures assure the proper administration of your estate. The court plays no favorites and makes sure that your wishes are respected for an orderly distribution of your estate. The statute of limitations begins to run and cuts off creditor claims in six months. Without probate, creditors of your estate have two years to file a claim.
Myth #3. Probate Means Assets Are Tied Up For A Long Time.
The statutory minimum for creditor claims during independent or supervised administration is six months. This means that creditors who are notified by letter or publication only have six months to file a claim or are forever barred. Contrary to popular belief, assets can be accessed and distributed to heirs and legatees immediately without having to wait for probate to close. However, it would be wise to wait for the 6-months claim period to end before distributing any assets. This is a tremendous benefit to your estate because without probate, creditors have at least two years to file a claim against your estate.
Myth #4. Probate Is Public.
Probate is as public as any other court matter. Whether your assets are held in a trust or by your estate, if litigation ensues your affairs are made public. However, only during supervised administration or by court order is an itemized inventory of your estate filed with the court.