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Basic Steps of Probate in Illinois (and How to Avoid It)

Uncover the Probate Process

While it is painful to think of the grief your family will suffer upon your death, it may be comforting to think that you can at least provide a material gift for them through your will. Without careful planning, however, the gifts you leave for your heirs in your will may be delayed by the process of probate. Learn more below about what is entailed in probating a will in Illinois, as well as some suggested strategies for avoiding probate, and contact a knowledgeable Chicago estate planning attorney for more information.

What Happens During Probate?

Probate is the name for the process of distributing assets owned by a deceased person (also known as the “decedent”) to their heirs and creditors. The process usually begins with the named executor filing the decedent’s will in the court of the county where the decedent lived. The executor, typically chosen and named by the decedent in their will, is often a relative or friend of the decedent. While the executor is the person charged with ensuring that an estate is properly distributed and closed, they often choose to hire professional legal help to handle the complex filings entailed in probate.

Once the court has received the will and determined that it is valid, the executor is next tasked with providing notice of the open probate matter to the decedent’s heirs (whether or not they’re included in the will). Creditors are notified of the death and their potential need to file a claim by a published notice in a local paper, as well as through direct outreach from the executor. The executor will compile a list of all the decedent’s assets. If needed to pay for funeral costs or other expenses, the executor will liquidate certain assets. Once all debts are paid and final tax returns filed, remaining assets will be distributed to the decedent’s heirs. The estate will then be deemed closed.

How Can I Avoid Probate?

One of the best and most commonly-used strategies for keeping your most valuable assets out of probate is the use of living trusts. Assets held in a living trust will not go through probate after the death of the settlor—meaning that your heirs can receive their gifts sooner than they would if the gifts were simply left to them in a will. Trusts can also come with other advantages, such as the option to place conditions on when and how the beneficiary receives their gift, or even certain tax advantages. You may also want to consider using tools such as transfer-on-death registrations, joint ownership of property, or payable-on-death designations to keep assets out of probate and in the hands of your loved ones. An Illinois estate planning attorney can present you with a full range of options for avoiding probate.

For seasoned and effective help creating an estate plan in the Chicago area or probating a will, contact the Carol Stream estate planning lawyers at Johnson, Westra, Broecker, Whittaker & Newitt for a consultation at 630-665-9600.

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