Introduction to Probate

What is Probate?: Introduction to Probate in Illinois

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
September 20, 2019

In this article we will be giving an introduction to Illinois probate, including: What is Probate?, Probate Basics, and Alternatives to Probate in Illinois. Although it is not a required process for every estate, probate is frequently the way that estates are legally divided after a death.

What is Probate?

Probate is a court case in which the court oversees the executor or administrator as they distribute the assets of a deceased individual to creditors and beneficiaries.  The probate process occurs after a person has died and is handled by an executor of the deceased person.  The executor is usually the person that the deceased named in his or her will to be responsible for managing his or her estate.  In the absence of a will, the person with this responsibility is referred to as the administrator.  The overall goal of probate is to clarify who gets certain assets of a deceased person and to ensure that debt is paid off.

In Illinois, probate is not always necessary. Probate is generally required in Illinois if the deceased person either:

  1. Owned assets outside of a “payable on death” account in excess of $100,000.00; or
  2. Owned any real estate that was not held jointly with another person with a right of survivorship.  

If neither of these scenarios are true, then the estate can be distributed without the need for probate through the use of a Small Estate Affidavit.  

Probate Basics

Probate should be initiated shortly after death either by a family member or the executor by filing a petition along with accompanying paperwork in the appropriate circuit court. The main goal to be achieved by the process is to transfer any titles into the intended beneficiary’s name, according to the terms of either the will or, in the absence of a will, state statute. Another purpose of probate is to avoid fraud after a person’s death and alert all interested parties, such as creditors and potential heirs, about the death of the deceased individual.  

This legal process is necessary whether or not the deceased had a will. In the case of a will, probate can serve to validate it. If there is no will, probate will be useful in determining heirs to an estate.  Revocable Living Trusts are estate planning tools similar to wills that are often used to make probate unnecessary.  

Depending on the complexity of the estate, the probate process may be easily completed, or may require extensive time and money. If any of the heirs or creditors disagree with the distribution of assets or believe the will was not signed in a sound state of mind, this may lead to litigation which can prolong the process. In Illinois, the probate costs arise from court costs, legal fees, administrator fees and other professional fees. In total, these can range but are typically around $5,000 and are paid for out of the estate.

Alternatives to Probate in Illinois

Illinois uses the Small Estate Affidavit for properties that are not subject to probate.  A Small Estate Affidavit is a form by which the administrator of the estate may testify under oath that probate is not required.  If the administrator of the estate fills out a Small Estate Affidavit, this can be shown to financial institutions in order to distribute an estate smaller than $100,000 without undergoing the probate process.  

Probate can be a taxing process for families, heirs and beneficiaries to endure and can leave them with bitter feelings towards each other, the executor or the estate. Despite this, probate can be an easier process than many believe and is legally required on a lot of estates.

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