Administering a loved one’s estate or trust is the legal process of collecting assets, resolving all liabilities, and distributing the remaining property. The laws involved in the administration of estate and trusts are designed to protect a decedent’s assets and the rights of those entitled to those assets.
After losing a loved one, the process of administering an estate or trust may seem overwhelming. Each estate is unique and no two estates include the same assets, liabilities, estate planning documents, and family dynamics. From real estate to sentimental personal items, from medical bills to credit card debts, from clear plans to unknown family members, we will assist with every aspect of the process. You will feel confident that your loved one’s estate is not only administered according to the law but also according to your loved one’s wishes and plans.
As stated above, probate administration is the legal process of administering a decedent’s estate. A formal probate process is necessary to administer a decedent’s estate when the decedent 1) owned real estate; or 2) owned over $100,000.00 in assets or personal property that was NOT jointly owned, named a beneficiary, and wasn’t held in trust.
We can assist with all aspects of the estate administration and follow a defined path from start to finish, which will generally involve:
- Filing a petition for the appointment of an estate representative
- Filing the decedent’s Will, if applicable.
- Identifying the heirs of the estate.
- Collecting and protecting the decedent’s assets.
- Resolving all liabilities and claims against the estate.
- Distributing the remaining assets to those entitled pursuant to the law or the decedent’s Will.
As part of the probate process, you might be wondering, “Am I an heir of the estate?” Generally, here are the rules of heirship:
- For a married person WITHOUT children, his or her surviving spouse is the only heir of the estate.
- For a married person WITH children, his or her spouse and children are heirs of the estate. The spouse receives half of the estate’s assets and the children share half (after liabilities are paid).
- For an unmarried person with parents and siblings, the parents and siblings are all heirs and share equally in the estate’s value (regardless of whether the deceased person was full or half-blood siblings with his surviving siblings).
- You can see the full list of how heirship is determined in Illinois by clicking HERE: 755 ILCS 5/ Probate Act of 1975. (ilga.gov).
Regardless of whether you’re an heir of an estate or not, you may have the right to collect assets of the estate by making a claim against the estate (for example, for a debt owed to you, or because you personally paid for the funeral or burial). You should be in touch with your trusted probate or estate attorney to discuss whether you have a valid claim against an estate to enforce your rights of reimbursement.
Small Estate Affidavit
A small estate affidavit is a sworn written statement that authorizes someone to collect and administer a decedent’s estate without the formal probate process and court oversight. In Illinois, a small estate affidavit can only be used when the decedent’s estate is worth less than $100,000.00 and the decedent did not own real estate. Those who can use a small estate affidavit in order to administer a small decedent’s estate may be limited to the decedent’s surviving spouse, heirs, or executor named in the decedent’s Will.
We can help determine whether the estate qualifies for a small estate affidavit, as well as draft the documents needed to process and administer the small estate, with instruction on how to effectively use the document to collect assets.
Representation of Heirs
Even if you are not tasked with administering a loved one’s estate yourself, you may be considered an heir or legatee of his or her estate. Heirs in Illinois are entitled to distributions from the estate due to their relationship with the decedent, such as surviving spouses, children, parents, siblings, etc. However, if the decedent had a will, it’s not the heirs who will inherit; it’s the Legatees of the will who are entitled to distributions from the estate because they were specifically gifted assets in the Decedent’s Will.
An heir or legatee may want to seek representation as a preemptive measure to ensure the estate is administered appropriately and that he or she is treated fairly. In other cases, an heir or legatee may seek a representative after an estate has been opened because the representative has acted wrongfully. This might include concealing assets, exploiting his or her power, failing to administer, or stealing money from the estate, among many other issues.
Administering a person’s Trust is not a court-ordered process; it can be done privately, which is one of the benefits of a trust. Trust administration involves collecting and protecting the Trust assets, resolving all liabilities, and distributing the remaining Trust assets to the beneficiaries named in the Trust.
While Trust administration may seem simple, it can become complicated based on the type of Trust, the unique terms of each Trust, and the varying Federal and state laws at play. In Illinois, Trustees are also required to strictly adhere to the Illinois Trust Code, which may be confusing and overwhelming without an experienced attorney.
Estate and Trust Litigation
Estate administration or Trust administration may turn into litigation, where parties take legal action in court to resolve a dispute, for several reasons. Litigating an estate or Trust most commonly stems from contesting the terms of a Will or Trust and/or the actions of the representative. Other contested matters may include disputed accountings and inventories, recovery of assets, unclean title to assets, claims, heirship disputes, and others.
Litigation surrounding an estate or Trust often means several parties are involved and/or several complicated court documents and hearings. Whether you are instituting legal action or defending against one, we can help navigate the process, determine available remedies, discuss legal implications, and produce the best possible outcome.
My family member just passed away, what do I do now?
Even with a better understanding of the probate or Trust administration process, it can be hard to know where to start after a loved one passes away. You understandably may not want to dive into the process until the funeral has passed and you have had a chance to grieve.
Regardless of when you are ready to start the process, we recommend keeping the following in mind:
- If you are in contact with other family members, you may want to discuss who in the family should be appointed and pool your knowledge regarding the Decedent’s assets.
- Do not attempt to access or spend any of the Decedent’s assets before an estate is opened, as you won’t have authority to do so until you are appointed.
- You will want to determine the heirs of the estate and their contact information.
- You will want to determine if the Decedent had a Will and/or Trust and obtain original copies of those documents.
- Original wills are required by law to be filed with the clerk of the county in which the decedent lived.
Relevant Illinois Statutes:
Illinois Probate Act: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2104
Illinois Trust Code: https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=4001
Frequently Asked Questions
How long does the probate process take in Illinois?
When an estate is opened less than two years since the decedent’s death, the minimum time to probate an estate is six months. This period allows creditors to file claims against the estate for unpaid debts. If an estate is opened past two years since the decedent’s death, there is no minimum amount of time the estate must stay open for. Estates are most often open for approximately a year, but the assets involved, the types of debts, the number of heirs, and whether it is contested will factor into how long the estate is opened for.
Do all Wills have to go through probate in Illinois?
The only time a Will does not have to go through probate is if the decedent’s assets [not held in Trust] equal less than $100,000.00 and there is no real estate property. In this case, a small estate affidavit may be used. However, the Will is still required to be filed with the county in which the decedent lived within 30 days of his or her passing.
What is the difference between a Will and a Trust?
A Will is the formal declaration of how a person wants his or her estate administered, and how assets should be distributed upon his or her death. A will covers all the assets of the person’s estate and becomes effective only after that person’s death. A will must be declared valid by the courts and must go through the probate system.
A Trust is more a formal agreement that a person executes to entrust property to another person or entity for another’s benefit. The person or entity entrusted with the property is the Trustee and has a fiduciary duty to manage the property in the Trust for the benefit of the named beneficiary. As the name suggests, a beneficiary is entitled to the benefit of the Trust, such as receiving income from the Trust or receiving specific property. A Trust only covers specific assets named in the Trust and becomes effective once the asset(s) named in the Trust are transferred to the Trustee. A Trust never goes through Probate.
A Trust and a Will are similar: they both name a representative who should manage property once you pass, and direct where your property should go. However, a properly funded Trust avoids expensive and lengthy probate, while a Will does not.
Can I handle probate without an attorney?
Illinois requires those petitioning for appointment as administrator or executor to be represented by an attorney. If you are an heir or legatee of an estate, you are not required to have an attorney. Those administering a Trust are also not required to have an attorney, though it is often helpful.
When do I need to start the probate process?
There is no certain deadline by which a probate process must be started after a Decedent’s death. However, you will want to consider the assets involved, the number and types of debts, the number of heirs, whether any assets will be lost by waiting, etc.
There are also two exceptions to the general rule worth noting. First, when the Decedent or his or her estate has a cause of action, such as against an individual that caused the Decedent’s death, medical malpractice, or a survival action, the cause of action will have a filing deadline (“statute of limitations”). An estate will need to be opened before the cause of action is filed. Second, in the case of Trusts, Trusts will often contain a term that the Trust must be administered by the Trustee as soon as possible after the settlor’s death. If the Trustee fails to do so, the Trustee may be liable for breach of fiduciary duty.
What if I was excluded from my family member’s Will?
You are an heir of your family member’s estate under the law but were excluded from his or her Will. If you feel you were wrongfully excluded from your family member’s Will, you may have grounds to contest the Will. However, there are only certain grounds on which you can contest the Will, including:
Undue influence, which means the Decedent was coerced into including all or parts of the Will.
Lack of testamentary capacity, which means the Decedent lacked the mental capacity needed to execute a valid Will.
Fraud or forgery, which can mean anything from adding pages after the Decedent signed the Will, to forging the Decedent’s signature, or tricking the Decedent into signing the Will.
Revocation, which means you are claiming the Will admitted to probate was legally revoked by the Decedent prior to his or her death.
Ignorance of Contents of Will, which generally means the Will was prepared for the Decedent, but the Decedent did not have the opportunity to read through the Will before signing.
Are any assets excluded from probate?
As previously stated, if the total value of the estate is less than $100,000.00 and there is no real property, probate is not required. Further, assets are not included in the estate if they were gifted outright to a beneficiary or if they were jointly owned with another living individual.
Are estates subject to taxes?
If the estate is valued at less than $4 million, no Illinois state estate tax return is required. If the estate is worth more than $4 million, there is a progressive estate tax that must be paid before the remaining assets are disbursed to the heirs. However, it is important to note that an individual state and federal tax return for the Decedent must be filed for the year of the Decedent’s death. The answer to the question of whether an estate is subject to Illinois estate taxes is one that will require likely both an estate attorney and accountant who are familiar with the requisite details.
Can I schedule a call or meeting?
Absolutely! Please call our office at (312) 300-4743. We are happy to have a brief chat to understand the basics of your potential case. We can also schedule an hour-long consultation to further discuss the details of your potential case.