If a decedent did not transfer his or her assets to a revocable or irrevocable trust before death, or if the decedent's assets were not held in joint tenancy with a person who survived the decedent, assets in the decedent's name alone must be probated. Simply put, probate is the process of administering these assets.
The duties of the representative (referred to as the “executor” for a decedent who left a will and the “administrator” for an intestate decedent) derive from two sources. First, the Illinois Probate Act (the “Act”) provides the basic legal rules the representative must follow. If the decedent died testate (that is, leaving a will), the representative must also follow the decedent’s directives as expressed in the will.
For testate decedents, it is the duty of the representative to file the decedent’s will with the clerk of the probate court in the county in which the decedent lived. The probate process begins with the filing of a petition with the probate court seeking to appoint a representative. For both intestate and testate estates, the court must determine the decedent’s heirs. Heirship may be established by an affidavit presented by the representative or another party who is familiar with the facts, but may also be established by testimony if necessary. For testate estates, the judge reviews the will to ascertain whether it satisfies the requirements of the Act, including proper attestation. If the will was properly executed, the judge will admit it to probate administration.
The representative must give the court a bond that he or she will administer the estate in accordance with the laws of the state. The Act provides that, unless waived by the decedent’s will, the representative must provide a surety. The surety is routinely provided by insurance agents located near the probate department of the court. The cost of the surety bond is based on the value of the assets of the estate.
After the court appoints the representative, the representative is legally authorized to administer the estate. In both testate or intestate estates, the representative has three objectives:
• Collect the decedent’s assets.
• Pay the decedent’s debts, funeral expenses, administrative expenses and estate taxes.
• Distribute the decedent’s assets in accordance with his or her will or, if one died intestate, to the decedent’s heirs in accordance with the Act.
The representative is required to prepare an account detailing the executor’s receipts, expenditures and distributions and to provide the account to the heirs or legatees. After the representative has completed his or her duties, the representative must file a report of his or her actions with the court, and the representative is discharged.
Probate administration can be accomplished with as few as two court appearances. The cost of probate administration depends on many variables, including the nature, number and value of the assets, the complexity of the assets or distribution, and whether any claims are filed against the estate. Executors, attorneys and accountants are entitled to reasonable fees -- there is no fee schedule based upon the size of the estate. Probate administration will take at least six months, being the period of time creditors are permitted to file a claim against the estate. Generally, probate administration takes approximately one year.
Probate may also be avoided by the creation of joint tenancies (although there may be adverse estate tax consequences), transfer of one’s assets to a living trust, or pursuant to a small estate affidavit. Under the small estates provisions of the Act, up to $100,000 in assets (such as bank accounts or title to cars) may be held in each person’s own name and transferred at death by the trustee’s submission of a small estate affidavit to the institution holding the asset or funds or to the Secretary of State to transfer an automobile title.