Probate Attorney servicing Northern Illinois Counties
At the Law Office of Robert Thomas we comprehend the sensitive nature of probate claims.
Granting of Probate
Letters of Administration are granted by a court to appoint appropriate people to deal with a deceased person’s estate where property will pass under Intestacy Rules or where there are no executors living (and willing and able to act) having been validly appointed under the deceased’s will. Essentially, this document is issued to the person who will administer the estate of someone who dies without a will. Letters authorize the administrator to settle the deceased person’s estate according to the state’s intestate succession laws. If a decedent has a surviving spouse, the surviving spouse will have priority in receiving a letter of administration over others, including children.
Banks, brokerages, and government agencies often require a certified copy of the letters before accepting the administrator’s authority to collect the deceased person’s assets.
Small Estate Affidavit
When an individual dies intestate (without a valid will or with no will at all), issues must be resolved involving the disposal of the decedent’s property, the settlement of debts and claims against the estate, the payment of estate taxes, and in particular the distribution of the estate to heirs who are legally entitled to receive it. These matters are resolved by following the laws of Descent and Distribution, which are found in the statutes of all states. Essentially, these laws divide the decedent’s property according to well-established rules of inheritance based on blood relations, adoption, or marriage. In the case of a person who has died intestate, the probate court appoints an administrator to distribute the property according to the relevant descent and distribution statutes.
In Illinois this notice is given publically through a newspaper. In addition, the personal representative may have to send letters directly to creditors in addition to publishing notice. Once creditors are notified of the death, creditors must follow certain procedures to collect from the estate. For example, creditors must file a claim in probate court within a six months of time after they receive the death notice.
Many times a personal representative has knowledge of the creditors of the deceased from the paperwork left. However, there may be additional creditors. The personal representative must be very careful, because he or she might be personally liable if creditors aren’t paid properly or if estate assets are paid out on invalid claims. Once the administrator has determined how many valid claims there are against the estate, he or she must see if there are enough assets to pay these debts. If there aren’t enough assets to cover the debts, the estate is said to be insolvent. From the assets in the estate, creditors are paid based on priority. For example, federal and estate taxes may be paid first, followed by probate expenses, funeral and last illness costs, and then general creditors.
If an estate is insolvent, the beneficiaries will also get nothing, even if a will leaves them specific property or specified sums of money. Beneficiaries can only receive assets in probate if there are enough assets left over after all legitimate debts have been paid.
Most Illinois probate estates run smoothly and are often completed and closed within 8 to 14 months after opening probate proceedings. However, when family members or beneficiaries are in conflict or where the estate plan was not carefully crafted, complications can arise, possibly resulting in litigation.
Some situations which may arise during probate that may require court intervention include:
- Will validity challenge — when the will was not properly witnesses or executed, or the original Will is not available.
- Will contest — when an heir or beneficiary raises issues of fraud, forgery, lack of capacity or undue influence in the creation of the Will.
- Will construction — when the terms of the will are ambiguous or unclear.
- Heirship dispute — when the identity of the decedent’s heirs are disputed or unknown.
- Contested claim — when potential creditors file claims that are disputed or contested.
- Citations to discover and/or recover assets — when somebody refuses to turn over to the executor information or assets properly belonging to the estate.
- Breach of fiduciary duty — when the representative acts improperly or fails to carry out its duties.
- Accounting/fee objections — when the accounting of estate activity or fees charged are disputed.
Inventory and Accounting for the Estate
The representative is responsible for locating, collecting, valuing, preserving, managing, and in appropriate circumstances, liquidating, the property in the probate estate. Careful attention should be given to the liquidity needs of the estate, investment and management of estate assets and the federal and state tax ramifications arising from the sale and distribution of assets. The representative must prepare an estate “Inventory”. The inventory of the estate is a listing of all assets (real and personal) in the estate as of the date of death, and their approximate values. Depending on the situation, appraisals will be needed to properly value real estate, business interests, and other personal property.
Accounting to Interested Persons
In addition to preparing the “Inventory” of the estate, the representative must provide an “Accounting” to the beneficiaries. The accounting should list all of the assets listed in the Inventory, any assets coming into the representative’s possession since the inventory, all income earned by the estate, disbursements (debts and administration expenses) made from the estate and interim distributions that have been made to beneficiaries. The accounting will show the assets then on hand and a proposed final distribution to the beneficiaries.
Before the estate can be closed, which may take 6 months to several years, the representative must prepare an accurate and complete final accounting. Therefore, it is imperative for the representative to keep detailed, accurate and complete records of all financial activity of the estate. In addition to Illinois law, local court rules dictate the form and manner for preparing and submitting accountings.