When a Loved One Passes Away - Probate and Estate Law FAQs
Our Illinois Probate attorneys help people deal with legal issues after their family member or loved one has died or passed away. It is a very trying time, and our Illinois Probate Attorneys find it rewarding to be of help.
By Colleen L. Sahlas, Attorney
What is Probate?
In the State of Illinois, Probate is a legal Court proceeding for the estate of a deceased person. The Probate Judge will do many things, including:
- appoint an Administrator/Executor of the estate;
- determine whether Court supervision is required;
- require and approve certain Court documents;
- ensure that the decedent’s assets (e.g. real estate, money and personal property) are collected and distributed as required by either the Will or State Law;
- ensure that all the estate’s expenses and debts are accounted for;
- ensure that estate creditors are given notice and time to file a claim;
- ensure that all applicable taxes are filed and paid;
- ensure that the remaining assets are given to those persons entitled to them.
Why Avoid Probate?
It is wise to avoid probate, if possible. The common complaints about probate include:
- A loss of privacy (the Will can be viewed by anyone who searches public record and the court proceedings are not private);
- Lengthy and time consuming proceedings;
- Numerous requirements to follow (a lot of “red tape”);
- High costs and expenses;
- A long wait for beneficiaries until they receive their inheritance.
How can I Avoid Probate?
Many people mistakenly believe that creating a valid Will in Illinois means that their loved ones will avoid probate upon their death. In general, creating a Will does not allow your estate to avoid probate at your death. We recommend that you call us for a free consultation on how to avoid probate.
How do I know if my loved one’s estate must go to probate?
The answer depends on many factors, for example, the location where your loved one died, the location of their assets, the total value of their assets, whether those assets were owned in the decedent’s name alone and whether those assets had beneficiary designations. We recommend that you make an appointment with The Law Offices of Hoy & Sahlas, LLC. We will assess your situation, provide you with legal advice and assist you in the legal process.
How long will Probate take?
There is no standard time frame for how long probate will last. The court decides when probate is completed. The court will not allow any estate to be closed until the all requirements under Illinois State and County Law are fulfilled.
How Much will Probate Cost?
There is no standard amount for how much probate will cost. It depends on many factors, some of which are: the amount and type of assets; whether the assets can be liquidated or sold and how long it will take; what the Will requires; potential creditor claims, potential objections or demands made to the Court by beneficiaries or other interested persons, etc.
Who will inherit from my loved one’s estate?
Situations vary and depend on different factors. The attorney will need to assist the Executor of the Will (or Administrator of the Estate) in determining how assets were titled, whether assets had named beneficiaries, whether a joint owner exists, whether the decedent left a valid, original Will, and other factors. If your loved one did not create a Will, destroyed their Will, lost their Will, or had a Court ruling that the Will was not valid, then Illinois State Law provides to whom and how much of the remaining assets will be given.
If my loved one had a Last Will, then the estate will avoid Probate, right?
Generally, no. Creating a valid Will in Illinois does not avoid probate.
Who has the right to get a copy of my loved one’s Last Will?
If the testator (maker of the will) is alive, then the testator decides to whom they will give a copy of the Will. Once the testator dies, the Will is no longer a private document as Illinois law requires that the original Will be filed in the county where the testator died. Once filed, it can be seen by anyone via public record.
Can I inherit my deceased loved one’s debt?
Under Illinois State Law, one cannot inherit a debt from another person. However, if the debt was shared (not solely belonging to the decedent), for example marital or joint debt where a survivor was a co-signer, guarantor or surety, then the survivor(s) will be responsible for the part, if not all, of the debt (depending on whether joint and several liability applies, and depending on other factors, etc.).
For more information, read the Illinois State Bar Association’s pamphlets:
- Probate ensures orderly distribution of assets after one’s death
- Living trust Transfers Property without Probate
If you have questions about the application of the law in a particular case, consult your lawyer. The law is constantly changing. Information on this site or any site to which we link does not constitute legal advice.