CENTER FOR PROBATE & ESTATE ADMINISTRATION
Frequently Asked Questions Concerning Probate and Estate Administration
Q: What are the requirements of a valid will?
A: Each state has a statute that determines the necessary attributes of a valid will. In Illinois, the will must be in writing, signed by the testator who is of sound mind and memory at the time of the execution of the will, and the testator’s signature is properly witnessed and notarized at the time of the execution of the will.
Q: What is probate?
A: Probate is a court process that determines the validity of the will and then causes an orderly administration of the estate. There is legal publication covering claims, a claims period during which claims can be filed (claims filed after the claims period may be barred). After the taxes, claims of creditors that were allowed and administration fees are paid, the remaining assets of the estate are distributed to the beneficiaries listed in a will, or if there is no valid will, according to the provisions in the state’s intestacy statute.
Q.: What assets are covered by probate?
A: Probate covers assets that were in the sole name of the decedent at the time of his or her death. Assets that pass as a result of a specific beneficiary designation, such as life insurance or employee benefit plans are not covered by the probate process.
Q: Is there any advantage to go through probate?
A: Besides the orderly transition of the estate, another advantage of probate is that the executor publishes for creditors. Any creditors that do not file claims within the statutory claims period are barred.
Q: What are the disadvantages of probate?
A: There are several disadvantages of probate. One is that the estate must stay open for the statutory claims period. As a result, the beneficiaries will not receive their distributions until the claims period has elapsed. The second disadvantage is the cost of probate, which include the time and fees that are involved.
Q: What assets are considered non-probate assets?
A: Non-probate assets include assets that have a specific beneficiary designation, such as life insurance or employee benefit plans. Non-probate assets also include joint assets listed with rights of survivorship or payable on death type accounts.
Q: What does an executor do in the probate process?
A: The executor starts the probate process by filing a petition to probate the will, an affidavit of heirship and other documents. Then, the executor gathers the probate assets, prepares an inventory of the assets and has certain of the assets appraised. The executor is responsible for the payment of any claims allowed, and the filing of any final lifetime income tax returns, federal and state estate tax returns and income tax returns for the estate. Since there are so many technical details involved in the process, the executor normally employs an attorney who is a specialist in probate and estate administration to help the executor through the probate process. The executor is normally entitled to reasonable compensation for his or her services, as well as payment for expenses advanced on behalf of the estate.
Q: Can you avoid probate?
A: Since probate covers assets in the sole name of the decedent, the ways to avoid probate are to title the decedent’s assets prior to his or her death in another fashion, such as in a revocable living trust, using joint tenancy with rights to survivorship to title bank accounts or real estate, using payable on death (POD) bank accounts and transfer on death securities (TOD). A qualified estate planning attorney can assist you to properly title your property to avoid probate and to allow for a smooth transfer to the beneficiaries after your death.
Q: What is an intestate estate?
A: An intestate estate is a probate estate where the decedent died without leaving a valid will. The property owned by the decedent is distributed according to the state statutes, rather than to the persons that the decedent might have preferred. Depending on the family, this may include distant relatives that the decedent has never met, or cousins or family members that the decedent did not even like.
Q: What is a revocable living trust?
A: A living trust is a revocable trust, which holds the legal title to property. During the lifetime of the grantor, the grantor of the trust has full ownership rights in the trust, just the same as the grantor would have owning the property outside of the trust. The trust document dictates how the trust property will be distributed at the death of the grantor. This is one of the best ways to avoid probate.