Our DuPage County probate attorneys have the experience you need to assist you in administering your loved one's probate estate or trust. Let us guide you through the paperwork and legalese so you can focus on your family. If you are the trustee or executor of a loved one’s estate, our friendly attorneys will ensure that the process is as efficient, speedy, and cost-effective as possible.
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DuPage County probate attorney, Kevin O'Flaherty, explains the Illinois probate process.
In this article, our DuPage County probate and guardianship attorneys address and answer common questions regarding probate. Discussed are the parameters that an estate must meet to avoid probate and alternatively, what causes an estate to enter probate. Probate can be a costly process which can cost up to 10% of the value of the estate in attorney and legal fees.
DuPage probate lawyer Kevin O'Flaherty discusses when probate is necessary in order to administer the estate of a deceased individual.
Probate is a court case that is sometimes necessary to administer the estate of a deceased individual, called the "decedent." In Illinois probate is necessary if any of the following are true:
If probate is necessary, then, in order for the decedent's loved ones to obtain the power and authority to collect the assets of the decedent and distribute them to creditors and heirs, a probate case must be filed and the court must issue an order appointing the executor and providing the executor with "Letters of Office." Letters of Office are an order from the probate court giving the executor the power to administer the assets of the decedent. Once the Letters of Office are issued, the executor can begin the process of administering the estate through the probate court.
DuPage probate attorney Kevin O'Flaherty discusses the difference between supervised administration and independent administration for probate cases in Illinois.
A probate case in DuPage County can be handled through either Supervised Administration or Independent Administration.
By default, estates are handled through Independent Administration. In an independently administered estate, the court exercises very little oversight over the actions of the executor. The executor will provide his or her accounting and inventory to the heirs and creditors, but need not file them with the court. As long as none of the creditors or heirs object to the executor's actions, the executor will only be required to appear in court twice: once to open the case, and a second time to close the case after his or her duties have been completed.
In a Supervised Administration, the executor must have all major decisions approved by the probate court. He or she must seek court approval to transfer or liquidate real estate, pay creditors or heirs, or make any other distributions of estate assets. The executor must also have the court approve the accounting and inventory.
An estate will be handled by Supervised Administration if Supervised Administration is either ordered by the court to protect the rights of a minor or disabled beneficiary or requested by an heir or creditor. If Supervised Administration is requested by an heir or creditor it will automatically be granted unless the will explicitly provides that the estate is to be administered independently, in which case the party requesting Supervised Administration must demonstrate "good cause."
Supervised Administration can be helpful to protect the executor and the rights of heirs and creditors if there are disputes between interested parties. However, it tends to be a long process, cost more in attorney fees, and require more work from the executor.
If probate is not necessary, the executor named in the decedent's will or the trustee named in the decedent's trust can download a form from the probate court's website called a Small Estate Affidavit. The Small Estate Affidavit is a document in which the executor or trustee testifies that probate is not necessary, and explaining how the estate is going to be distributed. With a copy of the Small Estate Affidavit, the decedent's death certificate, and a copy of the trust if one exists, the estate administrator can immediately begin collecting estate assets and distributing them to creditors and heirs. You should be aware, however, that even if probate is not necessary, any existing will must be filed with the clerk of the probate court.