Probate is the court process that governs guardianship matters for minors or disabled persons and decedent’s estates (i.e., the transfer of property from the name of the deceased person to a living person).
Real estate of any value is subject to probate unless it is in a form of ownership that is not subject to probate. Probate is also required if a decedent’s total assets which are in a form of ownership that is subject to probate are over $100,000. Property which is in a trust or in joint tenancy is not subject to probate. Accounts with payable-on-death beneficiaries ordinarily are not subject to probate.
A husband and wife, for example, may own a home in joint tenancy. When the first spouse dies, no probate is required for the home. It passes by law to the surviving joint tenant. However, when the surviving spouse eventually dies, if the home is titled in his or her own name (and not in a trust), the estate would be subject to probate.
If the decedent left a Will, the original has to be filed within thirty days of death with the clerk of the circuit court where the decedent resided. When the decedent had a Will, the probate is called “testate.” The executor named in the Will files for Letters of Office from the court. The Letters of Office give the executor authority to take control of the decedent’s property and to handle the distribution of the property.
When the decedent dies without leaving a Will or no Will can be found, the estate is called “intestate.” In an intestate estate, the law of the State of Illinois provides for how the property is to be distributed. In an intestate estate, the person who is appointed to take control of the property is called the administrator. In the appointment of an administrator, the law gives first preference to the surviving spouse, if any, and then to the decedent’s children.
A final income tax return needs to be filed for the decedent. Because an individual’s social security number dies with them so-to-speak, a tax identification number for the estate needs to be obtained from the IRS.
The probate process provides for notification to be given to the heirs or legatees and to potential creditors and other claimants. After notification is given to the creditors, there is a six-month period in which potential creditors could come forward to assert a claim. After all taxes have been paid, and the various claims, if any, have been dealt with, the assets can be distributed to the heirs or legatees. The executor or administrator gives a final accounting to the judge and the estate is closed.
The probate process is complicated and the executor or administrator should be represented by a lawyer. Although I no longer accept probate matters, I can provide referrals if probate is necessary.
Estate & Trust Administration
When a decedent’s estate is not subject to probate, there are still important steps which must be taken:
- A death certificate must be obtained.
- The original Will, if any, must be filed within thirty days with the clerk of the circuit court of the county where the decedent resided.
- An Affidavit of Domicile needs to be drafted and executed to establish what county the decedent had legal residence in at the time of death.
- A Small Estate Affidavit needs to be drafted and executed to establish that the decedent’s assets were not subject to probate.
- A federal tax identification number (FEIN) needs to be obtained from the IRS for the estate.
- A federal tax identification number (FEIN) needs to be obtained from the IRS for each trust, if any.
- An Attorney Certification of Trustee and Executor should be drafted and executed to provide proof of the authority of the trustee and executor for institutions holding assets of the decedent.
- A final tax return for the decedent needs to be filed.
- Even if no tax is due for the trust or estate an informational tax return should be filed.
- The executor or trustee needs to contact all of the institutions which hold assets of the decedent. Where the ownership is in a payable-on-death form, the executor or trustee needs to provide the necessary documentation required by the financial institution to release those assets to the beneficiaries. Where the ownership is not in a payable-on-death form, the executor or trustee needs to gain control of the asset and distribute the assets to the heirs or legatees that are entitled to them.
I am experienced in guiding executors and trustees through the process of estate and trust administration.
- American Bar Association, “The Probate Process”
- Answers some of the most common questions related to Probate.
- American Bar Association, “Guidelines for Individual Executors and Trustees”
- Answers some of the most common questions related to Executors and Trustees.