A great deal of myth and misinformation shrouds the Illinois probate process. The proliferation of information from estate planners selling the “living trust” and its ability to “avoid probate” coupled with general misinformation about the purpose of the probate system have sent a chill down the collective back of the public. The word “probate” actually encompasses a number of different court procedures including disabled adult guardianship and minor’s guardianship, however, most references to “probate” in common parlance refer to a deceased person’s estate.
The modern probate process in Illinois is not a plague to be “avoided at all costs” as it is commonly characterized and many of the particular problems presented by probate may be eased by proper representation. In some cases, probate may be required or even desired! Nonetheless, the probate process can be particularly trying 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 high value assets, the difficulty in obtaining or discovering the deceased’s financial and personal information, and the complex problems of delicate family inter-relations. Some 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 merely the process by which a probate court, (in Cook County, the probate court is located on the 18th floor of the Daley Center) with the help of a personal representative (known either as the executor in those instances where there is a will or an administrator when there is not a will), determines who (heirs, creditors, legatees (persons named in wills), etc.) receives the property and other assets of a deceased person, insuring that the proper entitled parties receive what is due them. It is extremely rare, although not completely impossible, that assets “escheat” to the State of Illinois.
The Probate Process
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 even left one or more one will or codicils to a will!). If the decedent left a will, Illinois Law requires that all originals wills be filed with the Clerk of the Court in the county where the testator (the person who made the will) last resided. 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 succession” will govern the disposition of estate assets. In these cases, the Illinois legislature has predetermined a statutory manner of distribution that will be followed.
A person wanting to pursue a probate case will file a petition with the court to open a probate estate. The law, in the case of an intestate estate, requires prior notice to certain other heirs in advance of the initial hearing. In those cases where a will exists, notice is generally sent to both heirs and legatees after the will is admitted to probate and the executor is empowered to represent the estate.
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 regardless of the size of the estate. 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 to certain notices to heirs or legatees, Illinois law requires that notice of the opening of the estate be given to the public through publication in a newspaper so that the decedent’s creditors, if any, may make their claims on the estate. The Illinois Probate Code also requires that the personal representative directly notify any of the estate’s creditors who are “known or who may be reasonably ascertained.” The estate representative has a to exercise due diligence by checking through the paperwork and effects of a deceased person to determine who is or who might be a creditor and to notify those creditors or potential creditors of the probate proceedings.
Notified creditors then have a time window within which to file their claims known as the “claims period”. If a claim is not filed within the claims period, it will be barred. A simple estate will be open for a minimum of six months from the date the executor is appointed and notice is served on 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 those cases where there are no claims filed or where the claims are simple or small, provided all of the other administration can be completed in time, the estate can be closed shortly after the expiration of the statutory claims period. In the case of estates handled outside of probate, such as when there is a trust or an unprobated will, the claim period is two years.
There are two “death tax” returns that might need to 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. These “death tax” returns must be filed if the entire estate, not just the probate estate, has assets in excess of a statutory amount. These days, the Federal and Illinois taxes kick in at different dollar amounts. Both returns, if required, are due and the taxes must be paid within nine months from the date of death.
In addition to estate taxes, an estate must usually file a final income tax return for the final year of the decedent’s life. This return is usually due on April 15 just like any other income tax return. Finally, the personal representative may have to file an income tax return on behalf of the estate itself, known as a Form 1041, for the income generated by the probate assets during the time the probate estate is open.
After all claims are paid and the inventory and accounting are completed and approved, the personal representative can distribute the estate assets as per the will or intestate succession law, collect receipts from estate recipients, and close the probate estate. The entire process can take anywhere from seven months to many years depending on the size and complexity of the estate.
SERVICES AND FEES
Reda | Ciprian | Magnone, LLC provides a range of probate services for personal representatives, from the filing of the will with the Clerk of the Court to the final order of the Court closing the estate, including the preparation and filing of probate pleadings, serving the required notices upon heirs and creditors, handling claim disputes and claim resolution, appearing in court on behalf of the personal representative, preparation and filing of inventories and accountings, arranging final distribution of the estate, and, in certain cases, the filing of income tax returns, estate income tax returns, and estate tax returns. We handle most of our cases in Cook County, Lake County and DuPage County.
Probate Services: Hourly attorney fees generally range, depending on the case and the attorney working on the file, from $325-$400 per hour plus costs. Fixed fee, hourly and percentage fee arrangements can often be arranged in advance depending upon the complexity of the case. Feel free to give us a call and we can discuss your situation.
About “alternate fee arrangements”: Many clients dislike the “uncertainty” of an hourly fee for probate services. In some 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. However, in appropriate situations, we might be able to closely estimate the amount of time likely to be spent on a probate matter and can agree on a fixed fee for the representation. As such, in those cases, we can offer our clients the “option” of setting a fixed fee based upon the value of the probate estate.
HOW TO GET STARTED
The first step to the probate process is to determine if there is a will and to call our office. Probate is a process that is governed by strict timing rules, so the sooner the process begins, the sooner it will end.
We are generally willing to have a short (5 to 15 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you.
Face to face Initial consultations are by appointment only and a consultation fee is generally charged.
To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122.