Please note that this discussion is about death probate. Life probate, or guardianship,
is discussed on other pages.
People go about their business during their lives. Once a person's life is over all of the
loose ends need to be tied up. This is what probate is about; tying up the loose ends one
leaves upon their death.
If you ask various people to describe probate, you may get different answers,
depending on their perspective.
If you ask an administrator or executor, they write checks from the estate, talk to (and
try to understand) their lawyer, and generally do whatever their lawyer asks them to do in
order to cut through the red tape and close the estate.
If you ask a judge, they review the Petition, Affidavit of Heirship, Oath and Bond of
Office, Will, Order Declaring Heirship, Order Admitting Will to Probate, Order Appointing
Representative, and other documents presented by a petitioner and their attorney to
open the estate. If everything is in order, judges later hear all issues that might come up
in probate such as will contests, arguments over various proposed actions of the
representative, claims, and other matters that can arise during the course of probate
administration. Eventually judges will review closing paperwork and, if everything is in
order, they will close the estate.
If you ask an heir or legatee, they review financial statements and correspondence
presented to them by the representative and lawyer, and then they either accept their gift
or bring any dispute they have to the judge. If they accept they sign a waiver and release,
and take their gift.
If you ask a creditor of the estate they present their claim within 6 months of getting
notice or they are barred from making their claim.
If you ask a lawyer who represents estates, they will tell you that they try to juggle all of
these various interests, satisfy the judge that everything has been properly noticed,
administered and distributed, and then to close the estate and earn their fee for doing so.
While everyone may have a different perspective you may notice some common
themes: giving proper notice, collecting whatever it is that each party is supposed to
collect, and paperwork.
You may hear sales pitches suggesting that you need to avoid probate. Consider that
common notions about probate may be untrue, like the notion that you have to pay some
large percentage of the estate toward probate fees, or that you will not have access to
estate funds for long periods of time. Generally you will have to pay a filing fee of between
$200 and $300 to the court, you need to publish the probate proceeding for another
$200 or so, and you may need to post a bond if the decedent left no will under which he
or she waived that requirement. The cost of the bond varies, depending on the size of the
estate, but it is generally under $1,000. Then attorney's fees should be reasonable,
depending on how much time is required and relative to the size of the estate. Click here
to see an estimate of what you might expect in terms of time your attorney may spend on
Funds may be tied up for a period of time, depending on whether the beneficiaries
agree and the issues pertaining to the estate. However please note that your
beneficiaries will probably require legal assistance to administer your estate, even without
a probate, and that it will take some time to administer the estate even if no probate is
required. Distributions are not made until all claims are resolved. The same is true for
both probate and non-probate assets.
Consider this before you pay fees during your lifetime, or otherwise alter your usual
ways of conducting your affairs, for products or services to "avoid" probate. You may still
wish to establish a trust, for example, or purchase insurance products. However it is our
experience that these products are expensive and too often over sold.
Trusts and insurance are fine tools. Our point is to understand what you are buying.
We provide another page in this site to describe necessary steps to be taken in probate
in Illinois, and we elaborate on timing in those pages. You might still wish to avoid probate
by titling your assets in such a way that those assets will not be probate assets, setting up
successor beneficiaries in accounts that allow you to provide for successors, or by
transferring your assets to trust. However understand that no one can guarantee that
you will successfully avoid probate since you could acquire probate assets despite
your best efforts.
Also, consider the fact that you might actually want to provide court supervision of the
administration of your estate and you might even want your representative to be bonded.
These facilities are in place to provide the ultimate assurance that your estate will be
settled properly and your assets are appropriately distributed. Administration of a trust is
less costly, after your death. But what happens if your trustee misappropriates or grossly
mismanages? Generally the probate administration is more public, more above board,
and provides a ready forum for resolving disputes. The fact that your beneficiaries have
this right is often enough to avoid disputes.
We have not noticed many pro se probate matters, or matters where individuals
represent themselves before the court. If there are other beneficiaries of the estate, other
than you, then you will not be allowed to represent the estate before the court and you will
need a licensed attorney. The probate process itself is not overly challenging, to the point
where only an attorney can figure it out. However the probate process is technical and
one who has handled a number of probate matters will be more efficient. Moreover, if you
are going to acquire a bond you will most likely need to assure the bondsman that a duly
licensed attorney is on the case.
What is accomplished in probate? Probate is a court proceeding whereby: 1) a
representative is appointed to administer the estate; 2) the decedent's assets are
marshaled and inventoried; 3) claims against the estate are allowed, adjudicated, or
barred if not timely made; 4) a decedent's will is admitted and scrutinized, if necessary; 5)
rights of heirs and will beneficiaries are determined; 6) the decedent's estate is accounted
for; 7) costs of administration are paid; 8) surviving spouse's or dependent children's
rights are administered; and 9) distributions are made to heirs or beneficiaries. In short, a
person's affairs are wound down.