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The Legal Pad of Richard Magnone |
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The Legal Pad of Richard Magnone
this month: Does Illinois probate law require
probate?
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TO PROBATE OR NOT PROBATE? The probate process is one whereby a court assists heirs, legatees and family members collect and distribute the assets of a recently deceased person. Although probate is usually necessary when a person dies, there are times where the process is not required. These scenerios include: 1) where a decedant has a proper living trust, 2) where all of the estate assets are owned jointly with other persons who have a "rights of survivorship" or 3) where the decedant did not have a probate estate over $50,000 and there is no other reason to open a probate estate. WHEN YOU MAY NOT HAVE TO PROBATE In the cases of living trusts and joinly held property, there is no probate estate to administer. In essence, the trust or asset has provisions within itself which operate automatically to transfer the property of a deceased person to some other person. Thus, these assets would not be part of a probate estate. Some examples would be life insurance with a named beneficiary, joint bank accounts, real estate titled as joint tenants or tenants by the entirety and retirement plans with a named beneficiary. In the case of estates with a probate estate less than $50,000 which includes no real property (land), Illinois provides a summary procedure for administration known as a Small Estate Affidavit. A Small Estate Affidavit is the sworn statement of some "interested person" of the estate that the value of the assets is under $50,000 and that the assets will be distributed to the proper persons pursuant to the decedant's will (if one exists) or the Illinois Instestate Succession laws. A person signing the affidavit will have the authority to reach the deceased person's assets such as bank accounts and stocks, etc.. The Small Estate Affidavit does not apply to real property. The person signing the affidavit may be held liable for failure to deliver assets to the proper persons required. WHEN YOU SHOULD STILL PROBATE EVEN IF YOU MIGHT NOT HAVE TO There are times, however, where it appears that no probate is necessary but where, in fact, an estate should be opened. An estate should be opened to collect debts owed to the deceased. If the deceased was owed money by another person or institution, the power of the administrator in probate is sufficient to collect. Further, if any legal action is required to collect upon a debt, the "probate estate" can act in the capacity of the decedant. A related scenario arises when a decedant was killed in a manner leading to some liability by another. Any of the decedant's rights to sue are an "asset" of the estate. It is not uncommon for an estate to file "wrongful death" lawsuits against parties responsible for the death of the decedant. Any assets gained by these lawsuits are the property of the estate and are to be distributed via probate. Probate may be necessary when an heir or legatee wishes to challenge the validity of a will. In fact, the probate process can be used to challenge the validity of a living trust. Wills may be challenged for technical defects, such as not being executed with the proper formalities or for claims that the decesaed was not competant or was under unde influence when the will was signed. These cases often require evidentiary hearings and cannot be solved through summary procedures. Probate should also be used to clear title to land or large value assets such as certificated securities (stocks and bonds) and bank accounts. Large value items, those over $50,000, cannot be transferred via a small estate affidavit. These assets must be transferred via probate. In those estates where the decedant owned real property, it is wise to open a probate estate. Until title is passed upon the property via an "Administrator's Deed", the property will remain titled in the name of the decedant. While some title companies may allow the heirs of a decedant to sell a property and convey good title based upon an affidavit that the decedant has passed away and that the sellers are the remaining survivors, not all will do so. The probate process will allow the smooth transfer, in the chain of title, of property to those entitled to ownership. Another reason probate is opened is to settle disputes between heirs. Often, more than one heir or legatee of the decedant may claim an asset. In these cases where each person feels entitled to certain assets, the probate court can intervene as an impartial party and settle the dispute. Other reasons for dispute may be ambiguity in contracts or in the will or disputes as to the decedant's actual ownership of the property in question. The probate court can solve all of these problems. WHAT SHOULD I DO? Every scenario is different. You should contact an attorney to help you decide whether probate is necessary or in your best interests. Often, probate can be a beneficial and relatively painless process. An attorney can help you. For more information, including a free telephone consultation or appointment, please contact Richard Magnone at 773-399-1122 Click here for more information on probate in Illinois DISCLAIMER This website is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that laws change quickly, and visitors should always insure that legal information is accurate before relying on it. The above information applies the law of the State of Illinois. The law in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting. This website is intended to be advertising, not solicitation, nor legal advice. Thus, the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein, and should always seek the advice of competent counsel in the reader's state. |