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PROBATE PRIMER
The Illinois Probate system
is one that is given to a great deal of myth and
misinformation. The proliferation of information regarding
the "Living Trust" and its ability to "avoid probate" and
misinformation about the probate process have sent a chill
down the collective back of the public.
Modern probate in Illinois
is not a plague to be avoided at all costs and any
particular problems presented by it may be eased by proper
representation. In some cases, probate may be required or
even desired. In most cases, probate is a trying process
because of the circumstances surrounding it. These usually
include, but are not limited to, the death of a loved one,
the pressure of dealing with large amounts of assets, the
difficulty in rounding up and discovering financial and
personal information of the deceased and dealing with the
delicate relations among various family members. All of
these strains and burdens may be eased or even erased with
the help of an experienced Illinois probate
attorney.
Far from being some mystical
court procedure, probate is the process by which the probate
court, (in Cook County, the probate court is located on the
12th and 18th floors of the Daley Center) with the help of a
personal representatve (the executor or administrator),
determines who (heirs, creditors, legatees (persons named in
wills), etc.) receives the property and assets of the
deceased person and makes sure that the proper, entitled
persons, receive the property and assets. It is not
impossible, but is extremely rare, that assets "escheat" to
the State of Illinois.
The process unofficially
"begins" when a person dies. The person who passed away,
known as the decedent, may or may not have left a will (or
may have left more than one will or codicils to the will!)
If the decedent left a will, the decedent is then known as a
"testator". If there is a will, Illinois Law requires that
all originals wills be filed "with the Clerk of the Court of
the proper county." In Cook County, wills are filed on the
twelfth floor of the Daley Center. If there is no will, the
estate is known as an intestate estate and the law of
"intestate succesion" will govern the disposition of estate
assets. In these cases, the Illinois legislature has
determined a statutory manner of distribution that will be
followed.
In either case, an person
wanting to open probate will file a petition with the court
to open an estate. The law, in the case of an intestate
estate, requires that notices be sent to all heirs and
legatees or, if not, their waiver and consent to probate and
the appointment of an administrator must be obtained. In the
case of the probate of a will, notice is generally sent
after the will is admitted to probate and the executor is
granted letters of office.
Next, barring a will contest
or formal proof of will, the named executor in a will or
some interested party in the case of intestacy will be
declared the personal representative of the estate by the
probate court. The representative's duties, in essence, are
quite simple and basically consist of collecting and
preserving the assets of the estate, paying the debts and
taxes and distributing the remaining assets as directed by
the intestacy statute or by the last will. As simple as this
sounds, the task may be daunting for large estates or
persons not experienced with financial matters. A personal
representative must keep track of the records of all
transactions involving the estate as an accounting and
inventory must be prepared to present either to the heirs or
to the court, depending on the manner of administration.
Once the estate is open, the court will issue "Letters of
Office" to the personal representative which, with a death
certificate, will allow the representative to act on behalf
of the estate.
In addition, Illinois law
requires that notice of the opening of the estate be given
to the public, usually through publication in a newspaper,
so that the decedent's creditors, if any, may make their
claims on the estate. Further, the Illinois Probate Code
requires that the personal representative personally notify
any of the estate's creditors who are "known or who may be
reasonably ascertained." Thus, the representative is under a
duty of due diligence in checking through the paperwork and
effects of a deceased person to determine who is or who
might be a creditor and who is thus entitled to actual
notice of probate proceedings.
Notified creditors must file
their claims during the "claim period" or else their claim
will be barred. A simple estate will be open for a minimum
of six months from the date the executor is appointed and
notices are mailed to creditors. This term is mandated by
statute and is instituted to allow creditors of the decedent
an opportunity to file claims against the estate. In many
cases, no claims are filed and the estate can be closed
shortly after the expiration of the statutory notice
periods. In the case of estates handled by a trust or other
situations where there is no probate, the claim period is
two years.
There are two "death tax"
returns that must be filed during the administration of the
estate. The first, commonly known as the "706" is the U.S.
Estate Tax Return filed with the federal government. The
second is the Illinois Estate Tax Return. Both returns are
due and the taxes must be paid within nine months from the
date of death. These "death tax" returns must be filed if
the entire estate, not just the probate estate, has assets
in excess of a statutory amount.
In addition to the above tax
returns, an estate must file a final income tax return for
the decedent for the final year of that person's life. This
return is due on April 15, in the same manner as a normal
income tax return. Finally, the estate may have to file an
income tax return on behalf of the estate, known as a 1041,
for the income generated by the probate assets after the
estate was opened. The estate can elect to file this return
on a calendar year or fiscal year.
After all claims are paid
and the inventory and accounting are completed, the
representative can distribute the assets of the estate as
per the will, collect receipts from those person's receiving
shares of the estate, and close the probate estate. The
entire process can take anywhere from nine months to many
years depending on the size and complexity of the
estate.
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PROBLEMS
IN PROBATE
The most common and most
tragic problems encountered in Probate arise when family
members do not get along and attempt to bring other family
troubles or grudges into the already complex realm of
Probate. In most cases, when siblings or legatees get along
or decide to cooperate, probate can be a relatively painless
process.
Other problems might also
surface. For instance, there may be a will contest or
challenge. In some cases, court proceedings may be necessary
to recover estate property being held by a relative or to
recover possession to a family home from a relative residing
there. In addition, many local rules, such as the Cook
County Probate Court's local rules, may apply in addition to
the Illinois statute.
Further, in many unfortunate
cases, the person charged with administration of the estate
may be less than truthful with the estate's heirs. In these
cases especially, a prospective heir should seek the
representation of a Probate attorney.
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SERVICES
AND FEES
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Services
Provided
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We provide full
probate services, from the filing of the will with
the Clerk of the Court to the final order of the
Court closing the estate. This includes preparing
and filing all probate pleadings, giving all
required notices, handling the resolution of claim
disputes, court appearances, inventories, final
accounts, final distribution, estate income tax
services and, in most cases, estate tax services.
We handle most of our cases in Cook County, Lake
County and DuPage County.
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Fees
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Probate Services:
$225 per hour plus costs
Attorneys fees on a "simple" probate estate,
without claims and without the need for estate tax
returns can cost anywhere from $4500 to $6750.
Fixed fee, hourly and percentage fee arrangements
can often be arranged in advance depending upon the
complexity of the case. Fixed fee arrangements are
usually reserved for relatively simple matters
where no contest or claim is expected and estate
assets are relatively simple.
Feel free to give me a call and we can discuss your
situation.
*costs vary, but usually range from $500 to
$700 plus, possibly a surety bond with a cost that
varies based on the size of the estate.
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Alternate Fee
Arrangement
Many people do not like the
"uncertainty" of an hourly rate for probate services. In
many instances, at the outset of a probate case, it is
impossible to determine the various twists and turns a case
may present, so quoting a fee to a client can be difficult.
As such, I offer clients the "option" of setting a fixed fee
based upon the value of the probate estate. Fixed fees begin
at a minimum of $3750 plus costs. I have found that many
clients enjoy the benefits of this arrangement.
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HOW
TO GET STARTED
The first step to the
probate process is to locate the will of the decedent and to
call my office. Probate is a process that is governed by
strict timing rules, so the sooner you begin the process,
the sooner it will be over. Of course, initial phone
consultations or appointments are without charge. To get
this process started, please feel free to contact
Richard Magnone at
773-399-1122.
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This
web site 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 and
Cook County. 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 web site is not intended to be
advertising, solicitation, or 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.
© 1997,
1998, 1999 , 2000 , 2001, 2002, 2003, 2004 Richard A.
Magnone
© 2005,
2006 Reda | Ciprian | Magnone, LLC
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