The Illinois Will Probate Process: Settling an Estate

Web Admin - Friday, September 21, 2018
Arlington Heights estate planning probate lawyerThe passing of assets from one generation to the next is a long-standing tradition, typically governed by a written will. When a person with a large estate dies, a legal process called probate ensures that the terms of the will are properly carried out. The process of probating a will in Illinois is controlled by the Illinois Probate Act and the rules of the circuit court in the decedent’s county of residence.

When an Illinois Will Must Go Through Probate

An Illinois estate must be probated when its total value exceeds $100,000 (excluding jointly-held properties and accounts with named beneficiaries, which transfer automatically upon death).

The Process to Probate a Will in Illinois

1. Petition for Probate - The first step is to file a Petition for Probate with the circuit court. This petition includes the will itself, the current estimated value of the estate, the names and addresses of heirs, and other information necessary to begin settling the estate. The executor named in the will or their appointed attorney must file this petition within 30 days of the decedent’s death and send copies to all heirs.

2. Hearing to Open Probate - The court will conduct a short hearing to officially validate the will and admit the will to probate. At the hearing, heirs may enter their objections to any part of the petition, such as the validity of the will itself, the person(s) designated to administer the estate, or the person(s) designated to act as personal fiduciaries for any underage or disabled heirs. The court will approve the executor and issue letters testamentary that authorize the executor to act on behalf of the estate.

3. Inventory of Assets - The executor has the responsibility to locate and secure all assets of the estate. A written inventory must be made, listing all bank and investment accounts, real estate, and personal property of significant value. Appraisals may be necessary to establish date of death” values for each piece of real and personal property.

4. Payment of Debts and Taxes - The executor must notify all creditors of the decedent and pay outstanding bills, including property taxes and any other expenses necessary to protect the assets of the estate. The estate must remain open for at least six months to ensure that all creditors are identified and paid. The executor must also file final state and federal tax returns for the decedent.

5. Petition for Distribution of the Estate - Upon conclusion of the prior steps, the executor must provide an accounting of their work on the estate, including all receipts and disbursements. The executor will then ask the court for permission to distribute the remainder of the estate according to the terms of the will. (When there is no question that the estate contains more than sufficient funds to pay off all debts, some distribution of assets may occur before the final accounting.) 

Consult a Palatine Estate Planning Lawyer

Ensure that your hard-earned assets are distributed to your heirs according to your wishes. An experienced Barrington estate planning attorney at Drost, Gilbert, Andrew & Apicella, LLC can help you develop an estate plan that will meet your specific goals and, after your death, ensure that your will is probated efficiently. Contact us at 847-934-6000.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


Tax Considerations for 2016

Web Admin - Tuesday, January 26, 2016

tax considerations for 2016, Illinois Estate Planning AttorneyAs we head into 2016, there are various tax issues of which to be aware and are related to estate planning and real estate debt. These issues include an extension of an existing law, as well as new requirements for 2016.   

Consistent Basis Reporting  

Estate tax is a tax levied when a person transfers property upon his or her death. It is calculated by using the fair market value of everything the deceased person owns or has an interest in. The total value is called the “Gross Estate.” Certain deductions may be taken from the Gross Estate to arrive at the person’s “Taxable Estate.” Finally, the value of lifetime taxable gifts is added to the Taxable Estate and the tax is computed. Most estates do not require the filing of an estate tax return. However, for 2016, a filing is required for estates that have combined gross assets and prior taxable gifts that exceed $5,450,000.   

Under §6035 of the Internal Revenue Code (IRC), the executor of an estate who is required to file an estate tax return must provide to anyone who acquires an interest in the property of the decedent’s gross estate a statement that identifies the value of each interest in such property as reported on the estate tax return. This statement must also be filed with the IRS.   

The basis of certain property acquired from a decedent cannot exceed the value of the property as determined for federal estate tax purposes. If the value has not been determined, pursuant to the IRC, the basis ceiling is set at the value of the property as reported on the statement made under §6035. These new requirements are intended to help with ensuring there is consistent basis reporting between estates and beneficiaries receiving property from decedents. The statement required under §6035 is made on Form 8971, which must be filed at the earlier of either 30 days after the estate tax return under §6018 must be filed or 30 days after the estate tax return is actually filed.   

Real Estate Forgiveness   

Ordinarily, gross income includes income realized when a person with debt discharges that indebtedness. However, a provision under the Tax Relief Extension Act has been extended to 2016 by amending IRC §108. This provision allows individuals to exclude from gross income discharges of qualified principal residence debt. Qualified principal residence debt is acquisition debt incurred in connection with a taxpayer’s principal residence. This is typically indebtedness related to the purchase, construction, or substantial improvement of a principal residence where the debt is secured by the residence. It may also include refinancing indebtedness. 

This exclusion was extended because it is believed that people restructuring acquisition debt on their home, or who are losing their home due to foreclosure probably, do not have sufficient cash to pay taxes on the discharged debt in the event it were considered income. Additionally, the extension was considered necessary for individuals who entered into a discharge agreement while the exclusion was allowed, but that had not completed the discharge yet. By extending the exclusion into 2016, those agreements can still enjoy the advantage of exclusion. For more information related to any of these issues, please speak with an experienced Illinois estate planning attorney today. Our firm serves the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Barrington, South Barrington, Riverwoods, and Mount Prospect.  

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.




Remedies for Unpaid Overtime in Illinois

Web Admin - Thursday, February 06, 2014

illinois unpaid overtime employment lawyerAmerican workers are facing a growing problem; their employers are failing to pay them overtime for extra hours that they worked. According to CNN, wage and hour claims have increased 400 percent in the last decade alone. Employers have a variety of tricks they can use to avoid paying employees the money they owe them. For instance, many employers improperly classify their workers as independent contractors, when they should actually be classified as employees.

This allows employers to subvert overtime laws and shift some of their tax burden to the worker. Employers can also avoid paying overtime by instituting improper policies to prevent employees from logging all of their hours. This can include such practices as forcing employees to clock out for lunches through which they work, making employees show up for work and then wait to clock in until later, or forcing workers to work from home without tracking their hours.

Fortunately, workers in Illinois have remedies available to them. Employees can bring suits for unpaid overtime under the federal Fair Labor Standards Act (“FLSA”) and under the Illinois Minimum Wage law. However, employees should know that both laws provide different limits on the amounts that they can recover from their employer.

The Fair Labor Standards Act

The FLSA is a federal law that protects workers from wage violations. If an employee brings a suit under the FLSA to recover overtime, they can receive overtime pay that the employer owes them from the past two years. That time period may increase to three years if the employee can prove that their employer willfully violated the statute.

A willful violation of the statute occurs if the employer “showed reckless disregard for the matter of whether their conduct violated the statute.” Additionally, in the case of such willful violations, the court may award “liquidated damages.” These extra damages can be as high as the initial amount of overtime owed, meaning the employee can receive twice the amount that the employer failed to pay them.

The Illinois Minimum Wage Law

Illinois also has a minimum wage law under which employees can sue in order to recover overtime pay. Employees can recover up to three years of back pay under this law, regardless of whether the employer willfully violated the law. However, suing under the Illinois law would deprive the employee of the opportunity to receive liquidated damages. Instead, the Illinois law provides for employees to receive two percent interest for each month that their employer owed them overtime.

Do you have questions about your employer’s overtime practices, or think you may be eligible for overtime pay that you never received? Reach out to a Rolling Meadows employment lawyer today. Our firm operates in many northwest suburban areas including Barrington, Crystal Lake, and Palatine.

About the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

Using Virtual Representation Effectively in Illinois

Web Admin - Wednesday, November 06, 2013

When a trust is created, many different people may have an interest in how it is administered. For example, it is common for the trust documents to allow one person to benefit immediately (i.e. a spouse), with others to receive the assets upon that beneficiary’s death (i.e. the children). Those who are set to inherit later obviously have a stake in how the trust is managed. Mismanagement may affect their interests.

But what happens if those future beneficiaries are children, disabled, or otherwise unable to effectively advocate for their interests? One solution is to go to court and have a judge appoint a guardian to act in their interest. But that process often takes significant time, is costly, and may be ineffective if the future beneficiaries are unknown, like unborn children.

Reaching an Agreement

Is there a way to settle disagreements involving a trust without going to court? Fortunately, there is.

Illinois has a “virtual representation” statute which allows select individuals to represent the interests of others to craft agreements, often dealing with disputes regarding a trust. Essentially, this law allows different parties to create agreements which avoid litigation and are binding on some future beneficiaries.

When used properly, these settlement agreements can solve ambiguities in the trust document, delineate duties of the trustee, and account for many other administrative issues. As a result, these agreements can be incredibly efficient, eliminating the risk of prolonged legal battles down the road.

Many Illinois residents are well served by exploring use of virtual representation to reach a nonjudicial agreement. However, it is important to proceed cautiously, usually with the aid of an attorney. When not created properly, the agreement may not hold up. Under the law, to be valid the primary beneficiaries must all be adults and legally competent. The trustee must also be a party to the agreement. Notably, the agreement cannot change the terms of the trust. In addition, the primary beneficiary must not have a conflict of interest with those who are being bound. To qualify as a primary beneficiary the individual must currently receive income or principal from the trust. Alternatively, the individual must be eligible to receive a distribution of principal at a certain date.

Learn More

Do you want to learn more about using virtual representation effectively? These issues are quite complex, and so it is helpful to contact a Palatine estate planning attorney to make sure you are doing everything in your power to protect your long-term interests. The law office of Drost, Gilbert, Andrew & Apicella, LLC serves clients in Palatine, Arlington Heights, Crystal Lake and other suburban Chicago areas.

Estate Tax Changes: Is it Time to Revisit Your Living Trust?

Web Admin - Friday, October 11, 2013

The American Taxpayer Relief Act of 2012 (ATRA) introduced “portability” as a permanent law which has many Illinois residents asking about the need for customary trusts. Portability allows a transfer up to $5.25 million in federal tax exceptions to surviving spouses. Previously, a married couple could only make the best use of both spouses’ exception amounts by dividing asset ownership and establishing a credit shelter trust (or an A/B living trust) that initiates after one spouse is deceased. Accordingly, a married couple can pass on $10.5 million to their heirs free from federal estate taxes.

If you have an existing A/B trust plan drafted prior to the estate tax law changes it is most likely based on the Federal Estate Exemption amount, which when it was $650,000, probably worked for a “mid-sized” estate. Now that the exemption is $5.25 million, people need to revisit the funding/formula clause of their A/B trust plan so that there is money present for a surviving spouse. Using portability rules at the federal level can allow a surviving spouse to live off the estate without necessarily the need for A/B planning depending on the size of the estate.

Additionally, a deceased spouse’s estate will not be taxable if less than $5.25 million. A surviving spouse will be required to fill out an IRS Form 706. The United States Estate (and Generation-Skipping Transfer) Tax Return will allow the surviving spouse to use the deceased spouse’s tax exemption or it will be lost. This exception is not transferable, but an A/B living trust can take advantage of the exemption amounts for potential transfers to grandchildren.

Though portability simplifies federal estate planning, but not Illinois Estate Tax, the need for traditional trusts is still apparent with the use of a credit shelter trust. There is potential to lose a deceased spouse’s unused exceptions if the surviving spouse remarries. A credit shelter trust with a new spouse can be used to protect this exception before remarriage. Prior to a remarriage, a credit shelter trust may provide asset protection and secure inheritances for children of former marriages and save assets from an heir’s creditors.

Inflation can also effect an exception amount because the portability law is fixed, but again a credit shelter trust can offer a safeguard. Finally, a living trust can avoid the costs and delays of probate that can cause family grief after a family death.

Since portability is here to stay, now would be a good time to revisit your living trust to determine how the portability law effects inheritance distribution. Contact an Illinois estate planning attorney to make sure your assets are accurately dispersed as you intend.

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