Experienced Chicago Probate Attorneys Answer Frequently Asked Questions About Illinois Probate Law
The probate attorneys at Johnson, Westra, Broecker, Whittaker & Newitt answer some of the questions they encounter most often as they advise and assist people in Chicago, Carol Stream and surrounding areas in probate and estate administration. If you have other questions, or if you need assistance in a particular probate matter, contact us at our offices in Carol Stream, St. Charles or Chicago to speak with a knowledgeable and experienced probate attorney.
How long does it take to probate an estate?
At a minimum, probate takes at least six months, which is the statutory period that creditors have to bring a claim against the estate. During this time, the executor of the estate will be locating heirs and beneficiaries and conducting an inventory and appraisal of the estate. Whether the probate can be concluded in six months depends upon a number of factors, such as whether claims or disputes are brought against the estate. It can sometimes take a year or more to conclude a probate administration, although having an experienced Illinois probate attorney working on your behalf can help to minimize the total time the process takes.
What does it cost to probate an estate?
There is no fixed cost to probate an estate, and the total amount depends upon the complexity of the estate and what has to be accomplished to settle the estate. For instance, is there real or personal property which must be appraised and then sold? Are there debts owed by the estate which must be paid, or debts owed to the estate which can be collected? Are creditors or others bringing claims against the estate which are disputed and must be resolved in court? Also, a final tax return for the estate must be prepared and filed. These are all typical aspects of a probate process that require the use of attorneys, accountants, appraisers and others.
Attorney fees are established by the court and charged at an hourly rate. How many hours the attorney needs to spend depends upon the complexity of the estate, if there are any challenges or disputes to resolve, and other similar matters. Other professionals charge an hourly fee as well. In addition, there are filing fees and other court costs which must be paid as part of the probate process. Finally, the person who is named as Executor of the estate is entitled to a fee for services performed as executor.
Can the executor decline his or her fee?
Probate expenses are paid by the estate before other distributions are made according to the will or Illinois intestate succession laws. The executor, although entitled to a fee for his or her services, may decide to waive the fee, in which case the money would go back into the estate to be distributed according to the will or intestacy laws. If the executor is also someone who is receiving a sizeable share of the estate, waiving the fee may be advantageous, since money received for serving as an executor is taxable income, while money received as an heir or beneficiary is generally not taxed.
Can I avoid probate by placing my property into trusts?
It is true that placing property into revocable living trusts, special needs trusts and other trusts removes the property from the probate estate. In fact, there are many ways to avoid probate through thoughtful, careful estate planning. Jointly-titled property and money in joint bank accounts do not have to be probated, because the property automatically goes to the joint owner. Life insurance policies and retirement plans with named beneficiaries do not have to be probated either. Basically, any instrument with a “transfer on death” provision is effective by operation of law and does not have to be probated. To completely avoid probate, however, you would need to remove almost all of your assets from the probate estate through these methods.
Also, very small estates, with less than $100,000 in what would otherwise be probate assets, can generally be handled by affidavit outside the probate process.
Keep in mind that there may be reasons to probate an estate even if you don’t have to, such as if there are outstanding claims or debts that the estate may be able to collect through litigation or collection efforts. If the person died because of the negligence or misconduct of another, for instance, the estate may be able to pursue a wrongful death lawsuit through the probate representative. And there are still reasons you may want to have a will, such as to appoint a guardian for your minor children, make special bequests, and make sure all of your property is distributed according to your wishes.