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.


Attorneys Stand to Collect Two Million in Prince Estate - A Matter of Probate, or Excessive Attorney Fees?

Web Admin - Thursday, August 18, 2016

Just days after the announcement of Prince’s death, media coverage revealed that the pop icon had died without a will. It seems strangely out of character, given how obsessively he controlled everything else in his life – copyrights, creative oversight, and releases – but all too true. His estate, his alleged vault of unreleased music, and all that he had worked so hard to build over the course of his life would have to go to probate (a legal process is used to identify, value, and divvy up a person’s assets in the absence of a will).

Attorneys, who have been designated by the estate’s executor, are currently sorting through the estate, trying to determine the value of his assets and determine how they should be divided, and the fees are adding up. As of right now, they are slated to collect around two million dollars (and the cost is still rising). Are these fees justified – simply the cost of having to go to probate – or are they excessive? The following will examine this point and will provide tips on controlling attorney’s fees during the probate process.

Are the Fees Justified?

Without looking directly at the work that needs to be done on the Prince estate, it is difficult to say for certain whether or not the costs are justified. However, the idea of paying out two million for probate on any estate – even one as complex and vast as Prince’s – does seem a little excessive. Unfortunately, now that the attorneys have already done the work, controlling the fees may now be difficult. If the executor had done a little due diligence, things might have turned out differently.

Controlling Attorney’s Fees During Probate

Some states let attorneys charge a percentage fee on the amount of the estate. Illinois is not one of these states. This does not mean that fees do not spiral out of control here; it simply means that you will generally face one of two fee schedules for a probate case: a flat fee, or an hourly one. Each has its own advantages and disadvantages, and you must understand them in order to avoid overcharging on your probate case.

Hourly fees can quickly get out of control, especially if they are following a commonly used minimum increments. For example, if your attorney spends two minutes on a phone call on behalf of the estate, they may charge you for six minutes (one-tenth of an hour). This makes it critical that you take the time to review the minutes you are charged for, and that you inquire about anything that does not make sense to you.

Flat fee attorneys do not charge hourly, so you do not have to worry as much about the “billable hours.” This can make for a more relaxed experience, but you might also be surprised to learn that certain elements are not covered in your fee. Make sure you understand what expenses are covered and which might be considered “extras” in your case (i.e. postage, filing fees, appraiser fees, etc.).

Regardless of which type of attorney you decide is most appropriate for your probate case, you should always request a fee agreement that outlines when and how you will be billed for services rendered. This agreement should cover:

- The type (hourly or flat) and the amount;
- An estimate of the overall cost for your case or number of hours );
- Who your contact will be with the law firm;
- How costs and expenses will be described in the billing process;
- How frequently you will be billed; and
- When payments will be due.

Our Attorneys Offer Affordable, Quality Legal Representation

At Drost, Gilbert, Andrew & Apicella, LLC, we understand how frustrating it can be to watch attorney’s fees rack up. That is why we offer skilled but affordable estate planning services to our clients in Arlington Heights, Long Grove, Barrington, and the surrounding areas. Dedicated to your interests, and to ensuring that your case is handled with the utmost level of care, we use creative and innovative solutions to improve the outcome of your case. Contact our Kenilworth estate planning attorneys today for more information.

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.


New Illinois Law Affects Gifts to Caregivers

Web Admin - Thursday, November 13, 2014

Illinois caregiver probate, Schaumburg probate lawyerDrafting a will is an important step towards ensuring that a person's final wishes can be accurately carried out. However, there have been recent cases of elderly testators succumbing to the undue influence of caregivers or other people close to them, and altering their wills in ways that they would not ordinarily want to. In order to better protect the interests of people drafting wills and other documents to memorialize their last wishes, Illinois has passed a new law that alters the way that courts treat gifts to caregivers if someone contests the validity of the document.

Presumptively Void Transfers

In the event that someone legally challenges a bequest to a caregiver of more than $20,000, the court will apply a “rebuttable presumption” that the transfer is void. A void transfer would not go through and would instead be redistributed under other provisions of estate law. However, not all large gifts to caregivers would be void under the law. The law instructs the court to use a rebuttable presumption, which means that the caregiver is allowed to argue that the transfer was valid and should go through normally.

What the presumption does, essentially, is forces the caregiver to fight an uphill battle if he or she wants to claim the money. The caregiver would need to show by “clear and convincing evidence,” a higher than normal standard, “that the transfer was not the product of fraud, duress, or undue influence.” The caregiver also has another option to demonstrate the validity of the will. If the caregiver can show that the gift's size is no greater than it would have been before he or she became the caregiver, then he or she can overcome the presumption.

When the Law Applies

The law contains a variety of cutouts and definitions that make it more clear when the law does or does not apply. For instance, the law provides an exception for family members who act as caregivers. They will not have to face the presumption of voidness, though they do still need to deal with ordinary issues of fraud and duress. The law also sets out a definition of the types of documents that the rule applies to, which the law refers to as transfer instruments. According to the law, a transfer instrument is a document designed to cause a transfer of assets on or after the date of the transferor's death. These instruments can be wills, trusts, or contracts, among a variety of other types of legal documents.

If you believe that a family member's will was improperly tampered with by a caregiver, seek the help of a dedicated Schaumburg, Illinois probate attorney today. Our firm can help you learn about the options you have to make sure that your family member's final wishes are carried out properly. We assist clients in Inverness, Palatine, Arlington Heights, and throughout the Chicagoland suburbs.

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.

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