Probate Estates for Illinois Decedents

Probate in Illinois 

The Illinois Probate system is given to a great deal of myth and misinformation. The proliferation of information regarding the "Living Trust" and its ability to "avoid probate" coupled with general misinformation about the probate process have sent a chill down the collective back of the public.  Although the word "probate" actually encompasses courts dealing with guardianships for disabled adults and minors as well as the estates of deceased persons, most references to "probate" are referring to a deceased person's estate.

Modern probate in Illinois is not the plague to be "avoided at all costs" as it is commonly characterized and many of the particular problems presented by probate may be eased by proper representation. In some cases, probate may be required or even desired. In most cases, the probate process is trying because of the circumstances surrounding it. These usually include, but are not limited to, the death of a loved one, the pressure of dealing with assets of high value, the difficulty in obtaining or discovering the deceased's financial and personal information and the complex problems of delicate family inter-relations. Some of these strains and burdens may be eased or even erased with the help of an experienced Illinois probate attorney.

Far from being some mystical court procedure, probate is the process by which the probate court, (in Cook County, the probate court is located on the 12th and 18th floors of the Daley Center) with the help of a personal representatve (the executor or administrator), determines who (heirs, creditors, legatees (persons named in wills), etc.) receives the property and other assets of a deceased person, insuring that the proper, entitled parties, receive what is due them.  It is not impossible, but is extremely rare, that assets "escheat" to the State of Illinois.

The process unofficially "begins" when a person dies. The person who passed away, known as the decedent, may or may not have left a will (or may have left more than one will or codicils to the will!) If the decedent left a will, the decedent is then known as a "testator". If there is a will, Illinois Law requires that all originals wills be filed "with the Clerk of the Court of the proper county." In Cook County, wills are filed on the twelfth floor of the Daley Center. If there is no will, the estate is known as an intestate estate and the law of "intestate succesion" will govern the disposition of estate assets. In these cases, the Illinois legislature has determined a statutory manner of distribution that will be followed.

In either case, an person wanting to open probate will file a petition with the court to open an estate. The law, in the case of an intestate estate, requires that notices be sent to all heirs and legatees or, if not, their waiver and consent to probate and the appointment of an administrator must be obtained. In the case of the probate of a will, notice is generally sent after the will is admitted to probate and the executor is granted letters of office.

Next, barring a will contest or formal proof of will, the named executor in a will or some interested party in the case of intestacy will be declared the personal representative of the estate by the probate court. The representative's duties, in essence, are quite simple and basically consist of collecting and preserving the assets of the estate, paying the debts and taxes and distributing the remaining assets as directed by the intestacy statute or by the last will. As simple as this sounds, the task may be daunting for large estates or persons not experienced with financial matters. A personal representative must keep track of the records of all transactions involving the estate as an accounting and inventory must be prepared to present either to the heirs or to the court, depending on the manner of administration. Once the estate is open, the court will issue "Letters of Office" to the personal representative which, with a death certificate, will allow the representative to act on behalf of the estate.

In addition, Illinois law requires that notice of the opening of the estate be given to the public, usually through publication in a newspaper, so that the decedent's creditors, if any, may make their claims on the estate. Further, the Illinois Probate Code requires that the personal representative personally notify any of the estate's creditors who are "known or who may be reasonably ascertained." Thus, the representative is under a duty of due diligence in checking through the paperwork and effects of a deceased person to determine who is or who might be a creditor and who is thus entitled to actual notice of probate proceedings.

Notified creditors must file their claims during the "claim period" or else their claim will be barred. A simple estate will be open for a minimum of six months from the date the executor is appointed and notices are mailed to creditors. This term is mandated by statute and is instituted to allow creditors of the decedent an opportunity to file claims against the estate. In many cases, no claims are filed and the estate can be closed shortly after the expiration of the statutory notice periods. In the case of estates handled by a trust or other situations where there is no probate, the claim period is two years.

There are two "death tax" returns that must be filed during the administration of the estate. The first, commonly known as the "706" is the U.S. Estate Tax Return filed with the federal government. The second is the Illinois Estate Tax Return. Both returns are due and the taxes must be paid within nine months from the date of death. These "death tax" returns must be filed if the entire estate, not just the probate estate, has assets in excess of a statutory amount.

In addition to the above tax returns, an estate must file a final income tax return for the decedent for the final year of that person's life. This return is due on April 15, in the same manner as a normal income tax return. Finally, the estate may have to file an income tax return on behalf of the estate, known as a 1041, for the income generated by the probate assets after the estate was opened. The estate can elect to file this return on a calendar year or fiscal year.

After all claims are paid and the inventory and accounting are completed, the representative can distribute the assets of the estate as per the will, collect receipts from those person's receiving shares of the estate, and close the probate estate. The entire process can take anywhere from nine months to many years depending on the size and complexity of the estate.

Services and Fees

We provide full probate services, from the filing of the will with the Clerk of the Court to the final order of the Court closing the estate, inclduing the preparation and filing of probate pleadings, serving the required notices upon heirs and creditors, handling claim disputes and claim resolution, appearing in court on behalf of the personal representative, preparation and filing of inventories and accountings, arranging final distribution of the estate, and, in certain cases, the filing of income tax returns, estate income tax returns, and estate tax returns.  We handle most of our cases in Cook County, Lake County and DuPage County.

Probate Services: Hourly attorneys fees range from $260-$275 per hour plus costs.  Fixed fee, hourly and percentage fee arrangements can often be arranged in advance depending upon the complexity of the case.  Feel free to give us a call and we can discuss your situation.

Alternate Fee Arrangements: Many clients do not like the "uncertainty" of an hourly rate for probate services. In some instances, at the outset of a probate case, it is impossible to determine the various twists and turns a case may present, so quoting a fee to a client can be difficult. However, in appropriate situations, we and our clients mighe be able to accurately estimate the amount of time likely to be spent on a probate matter and can agree on a fixed fee for the representation.  As such, in those cases, we can offer our clients the "option" of setting a fixed fee based upon the value of the probate estate.

How to Get Started

The first step to the probate process is to locate the will of the decedent and to call our office. Probate is a process that is governed by strict timing rules, so the sooner the process begins, the sooner it will end.  We are generally willing to have a short (5 to 15 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you.  Face to face Initial consultations are by appointment only and a consultation fee is generally charged.  To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122.