Understanding the Probate Process

Naperville estate planning attorneys, probate process, writing a will, establishing a trustThe mechanics of writing a will or establishing a trust are integral components of an estate plan. Equally important, however, is understanding how your estate plan will be administered. Here is what you can expect to happen with your estate, if you executed a will:

  1. The place of probate will be determined. Generally, probate will occur in the county where the deceased lived. If he did not maintain a residence in Illinois, probate will occur in the county where the bulk of his real estate is located. Finally, if there is no real estate in Illinois, probate will occur in the county where the bulk of his personal estate is located.

  1. Whoever has possession of the deceased’s will must file it. The will must be filed with the clerk of court in the proper county (as characterized above). If that person—or if some other person—wishes to have the will probated, then he must file a petition. If there is a named executor, then he must file the petition within 30 days of learning that he is the executor. If he fails to do so the court may deny him his right to act as executor.

  1. The attesting witnesses must testify. Execution of a will requires two attesting witnesses. Before a will is admitted to probate, those witnesses must testify (or provide an affidavit stating) that: (a) they were present and either saw the deceased sign the will or saw someone else sign it at the deceased’s direction, or the deceased acknowledged that he signed it, (b) that they attested the will in the deceased’s presence, and (c) they believed the deceased to be of sound mind and memory when he signed or acknowledged the will.

  1. There must be an inventory, and there may be an appraisal, of the deceased’s personal and real estate. The representative of the estate must file the inventory within 60 days of learning of his role. He has discretion to conduct an appraisal if he believes it is necessary to properly administer the estate.

  1. The personal and real estate will be administered. When there are no complications, the deceased’s property is bequeathed to the named beneficiaries. However, it is possible that either personal or real property could be sold to settle the deceased’s debts.

These are the basic steps in the probate process. Complications may arise, such as when a witness cannot be found, or if someone decides to contest the will. Moreover, the process is somewhat different if the person died intestate (without a will). But generally this is how probate works.

Let Our Estate Planning Attorneys Work for You 

It is important to understand the role that witnesses and executors play during probate, because that could have some bearing on your estate plan. It is also important to have an understanding of each step in the probate process. When you are creating an estate plan, you need an attorney who has experience with the entire process: creating the plan and going through probate. Our Naperville estate planning attorneys have that experience. Contact us today for a consultation.