The Probate Representative
The Illinois Probate Act at 755 ILCS 5/1-2.15 defines a “Representative” as follows: “Representative includes executor, administrator, administrator to collect, standby guardian, guardian and temporary guardian.” In a deceased person’s estate, the most common representatives are an executor, administrator and administrator to collect. (An administrator to collect is a representative named by the Probate Court upon the petition of a party interested in the probate action. The Administrator to collect is charged with preventing waste, loss or embezzlement of probate estate property.) In most cases though, the two main types of personal representatives in a probate situation are executors and administrators.
Executor versus Administrator
The executor and administrator hold a similar role and, in many cases, the roles are indistinguishable from one another. There are, however, a few differences between the two worth mentioning.
First, whether an executor or administrator is to be appointed usually depends upon whether or not the deceased person left a will. In the event that a valid “last will” exists, that document likely names an executor to represent the probate estate. In the event that a person dies without a will, aka “intestate”, the court will appoint an administrator, nominated by some interested party, to represent the probate estate. There is a third, sometimes confusing scenario, where there is a will, but either no executor is named in the will or the executors named cannot or will not act. In such a situation, the court will appoint an administrator just like in the case where there is no will. This is known as an administrator with the will annexed.
Second, the powers and duties of an executor and administrator may differ. The administrator’s power comes entirely from that power bestowed upon it by the Probate Act. An executor, however, while enjoying many statutory powers may also be granted additional powers or limitations by the terms of a will itself. Most wills, absent some reason to the contrary, provide executors with the broadest powers possible.
A third, and sometimes costly, difference is the requirement that all administrators and some executors must post a surety bond. The Illinois Probate Code, at 755 ILCS 5/12-2, requires that every individual representative shall take and file an oath that the representative will faithfully discharge the representative’s duties and a bond binding the representative to do so. The bond takes the form of a surety bond acquired from an insurance company. The probate code sets the amount of the bond at one and one half times the value of the probate estate’s personal estate (that is, all non-real estate assets). Surety bonds can be expensive. All administrators are required to post a bond. However, not all executors must do so. The probate code allows a testator (ie. the person making the will) to expressly waive the bond requirement for executors named in a will. In those instances where a will waives a bond or surety, executors need not procure a bond from an insurance company. The cost savings for an estate is one of the key advantages of preparing a will over proceeding via intestate succession.
The Estate Representative’s Job
In the most simple of terms, the representative is charged with “probating” the estate of the deceased person. The probate process consists of a number of procedures necessary to carry out the distribution of the property owned by the deceased person. Once officially named by the probate court, the representative receives “letters of office” which allow the representative to stand in the shoes of the deceased person and act legally on behalf of the probate estate. The duties of a representative include, but are not limited to the following:
- Filing and proving a will, if one exists, before the probate court;
- Gathering all of the probate assets (that is, those assets which are not jointly held or which do not have a designated beneficiary) of the deceased person;
- Holding, investing or managing probate assets, including setting up bank or brokerage accounts;
- Pursuing any actions at law to which the decedent might have been entitled to (such as wrongful death lawsuits);
- Maintaining and, if necessary, operating, those assets (such as a business or rental property);
- Preparing income and estate tax returns (both state and federal) for the deceased person’s final year of life and for the probate estate during the process of administration and paying those taxes from estate funds;
- Notifying all known and reasonably ascertainable creditors of an estate;
- Defending against frivolous or unfounded claims against the estate;
- Paying valid claims against the estate from estate funds;
- Preparing inventories and accountings of estate assets;
- Distributing the estate to those entitled to take distributions from it.
The probate process must all be performed within the procedures required by the Probate Act. In return for acting as representative (unless a will dictates otherwise), the representative may charge the estate “reasonable fees” for the job done on behalf of the estate.
The job of representative may be a daunting. Luckily for reluctant representatives, a nominated administrator or named executor may decline to act as representative or resign the post upon a petition to the probate court. All estate representatives should avail themselves of competent legal counsel to guide them through the sometime complex and confusing process of post-death asset administration.
What if I am asked to serve as Representative?
A great deal of responsibility is placed upon the shoulders of an estate representative. The job potentially requires dealing with various heirs, legatees, creditors, claimants, businesses and judges. Every scenario is different. Would be probate estate representatives should contact an attorney to obtain guidance with the procedures and duties of being an executor or an administrator. An attorney can help.
How to Get Started
We provide assistance to administrators and executors in most aspects of the probate process. If you would like to consult with us about any aspect of a probate estate, please contact us. To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122. 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.