Whether expected or unexpected, the passing of a loved one is never easy to process. On top of the emotional toll of losing a loved one, someone must handle the affairs of the deceased, adding an extra layer of complexity to an already difficult period.
This process is called probate, and if you’ve been tasked with handling the affairs of a recently departed loved one, you might find yourself asking “Do I need an attorney for probate?”.
Like many things in life, the answer is complicated.
Today, Hays Firm will help you understand what the probate process entails, when and why you would need a probate attorney, as well as offer our tips and best practices for handling the process.
What Does the Probate Process Entail?
Probate law is a branch of law that deals with how an estate is divided upon the estate holder’s passing. The formal task of handling the affairs of the decedent (the recently deceased) is called probate.
The person who handles this task is known as the executor of the estate and is typically named in the decedent’s will. If no will exists, or is deemed to be invalid, the deceased is said to have died intestate.
During the probate process, the executor must handle a variety of tasks including:
- Filing the death certificate with the probate court
- Filing a petition with the court to begin the probate process
- Taking inventory of the estate’s assets
- Settling outstanding debts and taxes
- Validating a will, if one exists, and distributing assets to heirs or beneficiaries
The complexity of a probate case depends on the size and value of the decedent’s estate. The greater the value, the higher the degree of complexity.
Do You Need a Probate Lawyer?
Whether you need a probate lawyer or not depends on the value of the estate.
In the state of Illinois, if the value of an estate is less than $100,000 and does not contain any real estate, the Illinois Small Estate Affidavit can be used to administer the estate. In this process, the executor is not legally required to have a lawyer and can represent the estate themselves.
However, when the estate holds a value greater than $100,000, or including properties, banks accounts, and other valuable assets within Cook County, Illinois does require that a lawyer represent an estate in formal probate proceedings.
The Cook County Probate division is extremely busy, and has very specific rules that must be followed. The complicated nature of cases with significant assets makes it absolutely necessary for an experienced probate court lawyer to handle these issues in court.
Do You Need a Probate Attorney If Using the Illinois Small Estate Affidavit?
While it may not be a requirement to hire a probate attorney to handle a small estate case, doing so can still be a worthwhile investment.
Significant legal decisions will still need to be made. Without proper understanding and legal training, it can be difficult to understand the legal tasks that must be completed.
As executor, you are responsible for notifying both heirs and creditors of the passing of the decedent. In addition, you are responsible for paying debts from the estate’s funds, and distributing remaining assets to heirs and beneficiaries.
Any disputes that arise between heirs over who gets what – even things like furniture – can open up opportunities for litigation from those who are unhappy with the outcome. As the signer of the affidavit, that leaves you liable.
Obtaining professional legal counsel from a probate attorney can significantly streamline the process, expediting proceedings and removing the personal liability of the affiant for potential misconduct.
Common Probate Disputes in Illinois
Even with a complete will and proper planning, disputes often arise over how assets are distributed. Some of the most common disagreements in probate proceedings include:
- Challenges to the Will – Some heirs may challenge the validity of a will. For example, it can be claimed that the will was created when the decedent was not of sound mind, or that they were pressured to make certain decisions regarding asset distribution.
- Asset Valuation – When assets like real estate, businesses, vehicles, even collectibles are involved, there is often dispute over the value of these items. Professional appraisals and legal guidance can mitigate these disputes.
- Beneficiary Disputes – Ambiguous language within a will or trust can raise questions over who is entitled to receive a specific asset. Legal counsel is often needed to settle these issues.
- Executor Misconduct – As executor, you are required to act in the best interest of the estate. However, disgruntled heirs or beneficiaries may file a lawsuit if they believe the estate has been mishandled. Retaining a specific lawyer for probate can minimize such claims.
5 Reasons Why You Would Need a Probate Attorney
The probate process for large estates with significant financial holdings, properties, and assets becomes complicated very quickly. We’ll share the five biggest reasons why you would need a probate attorney.
- Probate is a Long Process – From start to finish, probate can take 6 months to a year. Most family members cannot dedicate their full time to this lengthy process. A lawyer can handle it for them.
- Family Disputes Can Arise – With large estates, it’s common for disagreements to arise over how assets are distributed, even when there is a will in place. Having a neutral lawyer for probate to handle these responsibilities will minimize family infighting.
- Complexity of Probate Court – A judge will not tolerate self represented people who lack the knowledge and skill to carry out their duties, making the court proceedings unnecessarily difficult. A specialized lawyer for probate already has a deep understanding of the law, and the experience to conduct themselves properly in court.
- Professional Representation Is a Smoother Process – If you make a mistake due to not understanding the full breadth of probate law, other heirs and even creditors can file a lawsuit. An experienced probate court lawyer is far less likely to make such mistakes.
- The Cost of a Lawyer for Probate Isn’t What You’d Expect – While the specific cost will depend on the size of the estate and complexity of the case, the estate itself pays the actual cost of hiring a probate court lawyer, not the executor. Even if the estate is valued at less than $100,000, hiring a lawyer for probate is often reasonable compared to attempting to navigate the process alone.
Conclusion
Whether you’ve been made the executor of a large estate or even one with a relatively small value, the probate process can lead to many challenges and disputes for those unprepared to deal with the legal obligations.
Since 2008, Hays Firm has guided families throughout the greater Chicago area through the probate process.
Our core values of integrity and honesty, excellence, service and respect drive our relationships with each and every client we serve. As a small law firm, we’re able to provide tailored representation to the individual needs of the families we work with, ensuring that their loved one’s assets are protected and transferred without undue stress or headache.
Don’t risk navigating the murky waters of probate law alone. Contact Hays Firm today and let us take the stress out of probate law for you.
**Disclaimer**
This content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney or lawyer for advice specific to your situation.
