CENTER FOR PROBATE AND ESTATE ADMINISTRATION
The Probate Process
Probate is the court process which determines the validity of the will and oversees the payment of creditors of the decedent, the payment of taxes owed by the estate and ultimately the distribution of the assets of the estate. Each state has its own laws which govern the probate process. The state of the decedent’s domicile normally controls where the probate process is begun. The state of domicile is the state that the decedent actually resided in and called home. If the decedent owns property located outside of domicile, if that property was in the decedent’s sole name, there may have to be a probate opened in that state, known as an ancillary probate proceeding.
If you were named the executor of an estate, consider contacting an experienced probate attorney to help you to identify and carry out your duties to administer the estate.
What happens during probate?
While certain things may vary because of state laws, probating the state usually includes the following functions:
- Petition to the court to probate the will (requesting the court to hold that the will is valid and will be followed to administer the estate);
- Preparing and sending notices to creditors, beneficiaries, heirs and other interested parties;
- Gathering all assets of the decedent, preparing an inventory and appraising the assets;
- Collecting any payments, debts and income due to the estate;
- The payment of any debts owned, and the preparation, payment of tax and filing of all federal and state taxes;
- The distribution of any remaining assets to the beneficiaries according to the terms of the will.
Small Estates
Most states have adopted legislation which may simplify the procedure for small estates. In Illinois, there is a small estate affidavit which can be used for a smaller estate, which can cut down the time and cost vs. probate administration.
The Disadvantages of Probate
Time and Expense: The time necessary to go through probate may vary between 6 months on the low side to 2 years or more on the high side to complete. If there is a contest to the validity of the will, that may increase the time frame for the process. The probate process costs money, with all probate costs coming out of the funds in the estate.
Privacy concerns: Since probate is a matter of public record, anyone can find out the size, contents and beneficiaries of the estate. In Illinois, there is a concept called “independent administration” which reduces the information that will be in a probate file available to the public and which can reduce the costs of probate. Even with independent administration, the approximate size of the estate, the heirs and the beneficiaries are all of public record. This may mean that there is tension caused between family members.
Intestate Estates
If someone dies without a will, or if the probate court determines that the will of the deceased person is not valid, that person is said to have died intestate. Each state has an intestacy statute which governs how the decedent’s property will be distributed, which may be at odds with what the decedent had in mind. It is important to use a qualified estate planning attorney so that you will be declared valid by the probate court.
An experienced probate and estate administration attorney can help simplify the probate or estate administration process for you. Give our office a call to schedule a consultation with an experienced attorney.
