Probate refers to the process for distributing a deceased person’s property. If the person who passed executed a will, that will must be filed with the county clerk’s office within 30 days. This is the first step in the probate process. After the will is filed, a petition may be filed with the county court to open a probate estate.
If the person dies without a will or estate plan, then the family and friends of the deceased person must determine who will be the “administrator” of the estate.
Like an executor, the administrator is responsible for paying the bills of the estate and distributing the assets. The administrator will then file a petition with the county court to open a probate estate. Understanding estate planning and legal terms can be confusing, but we can help with legal terms you are likely to see. A probate attorney at Hays Firm is backed by decades of probate experience in the Chicago, Illinois area helping people with all aspects of the probate process.
PROBATE ATTORNEY SERVICES
Chicago Probate attorneys at Hays Firm can provide the following legal services
REVIEW WILLS AND TRUSTS
A Hays Firm probate attorney will review wills and trusts created by the deceased person prior to their death. This also includes creating new estate plans, amending existing ones, legal advice, guidance, consultations, and periodic reviews.
DETERMINE WHETHER PROBATE IS NECESSARY
A variety of factors will help us determine whether it is necessary to open a probate estate in court. We also help to distinguish between the different types of claims that can be filed against Illinois probate estates.
FILE A WILL
If necessary, Hays Firm LLC will file a will on your behalf. After locating the Will, we can also guide you and your family through the process of gathering assets, paying bills, and distributing property if the deceased person has a will.
DRAFT PETITIONS
Hays Firm LLC will draft the petition for letters of administration or petition to admit a will to probate which is necessary to open a probate estate. We also help with filing a claim or lawsuit against the executor of an estate.
DRAFT PLEADINGS AND DOCUMENTS
Our firm drafts all documents and pleadings relating to opening and closing a probate estate, including Transfer on Death Instruments. Generally, in order to sell real property after a person dies, a probate estate needs to be opened.
PROVIDE ADVICE
A Hays Firm probate attorney provides executors and administrators with help understanding estate planning and legal terms. Our role is to bridge the gap between you and the legal world, and help guide you through the process so you can make an informed decision.
ESTATE ADMINISTRATION
Our Chicago estate lawyers guide executors and administrators as they pay bills and distribute property. The Illinois Probate Act divides all claims against the decedent’s estate into seven classes, and claims against the estate are paid according to these classes.
CLOSING THE ESTATE
A Hays Firm probate attorney will consult and advise executors on closing an estate as they wrap up the estate. Since a lawsuit can severely slow down the probate process, we will help tie up loose ends in the deceased’s life in order to close the estate as efficiently as possible.
PROBATE FAQs
WHAT IS PROBATE?
Probate is the legal term used for the process of proving a will is valid, distributing property to heirs and settling unpaid debts. If there is no will, probate is the way the court decides how the deceased’s property will be distributed. An executor of a will is someone named by the deceased, while an administrator is appointed by probate court in the event there is no will.
WHAT DOES PROBATE MEAN IN ILLINOIS?
Probate rules vary slightly from state to state. In Illinois, probate can refer to the distribution of assets after someone’s death or to the guardianship of a person who has become permanently disabled. A probate estate must be opened if assets are greater than $100,000 or if real estate is involved in the estate. The probate estate is opened in the county in which the deceased lived when he or she died. Hays Firm can guide you through probate across the state.
HOW LONG DOES THE PROBATE PROCESS TAKE?
If a probate estate is opened soon after a person’s death, all debts are paid, and all property distributed in a timely manner, the probate process may take as little as 6-8 months. However, resolving creditor issues and selling real property like a home usually extends the process.
WHEN IS IT NECESSARY TO OPEN A PROBATE ESTATE?
In order to determine whether probate is necessary, we will review the deceased person’s property. If the deceased person owned real property, such as a home, and the real property is not owned jointly by a surviving spouse or relative, then a probate estate will need to be opened.
As to other assets, if the total amount of the decedent’s personal assets are greater than $100,000.00, a probate estate must be opened to transfer these assets.
IS PROBATE A "NIGHTMARE"?
Many people have heard tales of horrific family drama stemming from a probate matter. Siblings who no longer speak to one another, arguing for years over family heirlooms that may not have any value outside of the family. However, these nightmares are the exception to the probate process, not the rule. By and large, families work together with the executor to sell property and fairly distribute assets. Disputes, if any, are addressed without the need for intervention from the court.
PROBATE: WHAT IS THE COST?
Many people have heard tales of horrific family drama stemming from a probate matter. Siblings who no longer speak to one another, arguing for years over family heirlooms that may not have any value outside of the family. However, these nightmares are the exception to the probate process, not the rule. By and large, families work together with the executor to sell property and fairly distribute assets. Disputes, if any, are addressed without the need for intervention from the court.
IS THERE A WAY TO AVOID PROBATE?
This question is best answered by one of our estate planning attorneys. Since probate is not inherently bad or problematic, it is important to learn your goals and plans. There are many advantages to the probate process. However, there are many reasons to set up an estate plan outside of the probate process. Please contact one of our attorneys to learn more about what is right for you and your family.
POWER OF ATTORNEY: WHAT HAPPENS IF YOU DO NOT HAVE ONE?
Simply put, power of attorney means that you have authorized a trusted person to act in your name in the event that you are unable to make decisions about your health or finances. This can happen as a result of an accident, traumatic illness, or simply due to aging. Without designated power of attorney, your loved ones cannot make decisions for you, and the probate court must name a legal guardian for you, an often long and expensive process. Making an estate plan, including giving someone you trust power of attorney, protects you during your life and your loved ones after your death.
IS AN EXECUTOR PERSONALLY RESPONSIBLE FOR THE DEBTS OF THE PERSON WHO DIED?
Simply put, power of attorney means that you have authorized a trusted person to act in your name in the event that you are unable to make decisions about your health or finances. This can happen as a result of an accident, traumatic illness, or simply due to aging. Without designated power of attorney, your loved ones cannot make decisions for you, and the probate court must name a legal guardian for you, an often long and expensive process. Making an estate plan, including giving someone you trust power of attorney, protects you during your life and your loved ones after your death.
ADVICE FOR PROBATE OR EXECUTOR ISSUES GONE WRONG
If problems arise during probate, the experienced team of lawyers at Hays Firm can help you handle it.
FILING A CLAIM AGAINST A PROBATE ESTATE IN ILLINOIS
When an estate is in probate, the executor or administrator of the estate (depending on whether or not a will exists) must pay the debts of the estate and then oversee distribution of assets. There is a set period of time during probate where those with claims ranging from unpaid debts to tort claims against the deceased may file and present their claim to the court. The executor of the estate may disallow or dispute a claim made on the estate, in which case the presiding judge for the probate estate decides if claims are valid. Both the estate and creditors should be represented by probate attorneys or attorneys with considerable experience in probate claims.
REMOVING AN EXECUTOR
An executor must act according to the highest standards of conduct while performing his or her duties. Debts must be paid, property may need to be sold in order to fairly distribute assets to beneficiaries, tax returns for the individual and the estate must be filed, and remaining assets distributed. In the event of serious misconduct, where the executor engages in acts that do not benefit the estate or its beneficiaries, a petition to remove the executor may be filed. Evidence of wrongdoing is presented at an evidentiary hearing, and the presiding judge will decide whether the executor should be removed. We recommend discussing any such issues with an experienced probate attorney.
AN EXECUTOR STEALING
If an executor uses assets from the estate for his or her own benefit or hides the existence of assets in order to deprive beneficiaries of their value, they are engaging in serious misconduct and may be removed from their position as executor. This includes hiding statements or documents about existing debt or real estate holdings, statements from bank or retirement accounts, or the existence of personal valuables such as jewelry. If beneficiaries or others with a financial stake in the estate suspect this misconduct, they may file to remove the executor and to prevent assets from being depleted further. We recommend discussing any such issues with an experienced probate attorney.
FILING CLAIM AGAINST AN EXECUTOR
In the event that an executor engages in serious misconduct against the interests of the estate they represent, or its beneficiaries, they may be subject to litigation. While creditors may make a claim against a probate estate, legal action against an executor may only be brought by individuals with a true legal interest in the estate. The court designates such persons as having standing, and claimants include beneficiaries of the current or former will or trust of the deceased, as well as any disinherited heirs. We recommend discussing any such issues with an experienced probate attorney.
COMMON TYPES OF EXECUTOR MISCONDUCT
As stated, the executor is held to the highest standard of fair dealing and diligence regarding their duties to the estate. Self-dealing conduct, negligence and other behavior that does not protect or outright damages the estate is grounds for removal as executor. In most cases, the executor takes his or her responsibilities seriously, but in some cases trouble arises. Failing to care for the property of the estate, failure to pay bills or taxes, mixing personal funds with those of the estate or hiding assets are all examples of misconduct and can open the executor up for removal and even for litigation. We recommend discussing any such issues with an experienced probate attorney.
