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An Overview of the Illinois Probate Claims Process

Web Admin - Thursday, February 13, 2014

illinois probate claims lawyerThe probate process in Illinois acts as a method of legally putting to rest the affairs of a deceased person. One of the most important parts of the process is the ability to file a probate claim. These claims allow creditors to attempt to collect on any debts that the deceased may have had. Illinois law establishes a strict hierarchy of these claims to determine which claims get paid out first.

The Claims Process

The claims process begins shortly after a person’s death. If the person has more than $100,000 in assets their family will have to open the probate process. This involves filing a will with the courts (if a will exists) and getting an executor appointed by the court. The executor will manage the administration of the will and is an important figure for creditors who want to file claims.

The law requires executors to publish a notice of probate in an appropriate newspaper to alert any potential creditors to the process. They must also send written notice to any creditors that the executor “knows or may reasonably ascertain.” Once a creditor receives notice of probate, they have six months within which to file a claim for payment from the estate. Any claims after this six month period will be barred by the court as long as the executor provided proper notice.

Once a creditor files a claim, the executor has three options: they may choose to pay it in full, they may attempt to settle, or they may refuse to pay. In the case of an executor who refuses to pay a claim, the creditor then has the option of litigating the claim in front of a judge to determine its validity.

Establishing Priority

Once the executor and the courts determine which claims are valid, they rely on the Illinois Probate Act of 1975 to determine what order the debts should be paid in. The Act divides claims into seven different classes, and pays them out in order. The seven classes are:

1.    Reasonable funeral and burial expenses

2.    Surviving spouse’s or child’s award. This is an award of enough money to the decedent’s spouse and children to keep them living in their usual lifestyle for nine months following the person’s death.

3.    Debts due to the United States

4.    Debts owed to employees, not to exceed $800, and debts dealing with the decedent’s last illness

5.    Money and property held in trust by the decedent

6.    Debts due to Illinois state and local government

7.    All other claims

If you need help navigating the probate process, contact an Illinois Estate Planning Attorney today. Our firm serves many different towns in the northwest suburbs including Palatine, Des Plaines, and Rolling Meadows.

About the Author: Attorney Jay Andrew is 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.

Who Takes Care of the Children after the Death of a Parent

Web Admin - Thursday, November 28, 2013

By: Jay A. Andrew

http://www.dgaalaw.com/jay-andrew.html 

Determining who becomes guardian of a child in the unfortunate event that their parents pass away is an important decision. While parents have the right to make such decisions during their estate planning process, not everyone makes these preparations, and that leaves the decision of who raises the children up to the court. Illinois law guides the court as well as it can, providing general provisions for who qualifies to become a guardian in the Probate Act of 1975.

How the Judge Chooses a Guardian

Illinois law provides considerable freedom to judges in choosing who assumes guardianship of a minor, although the law does place some general restrictions on the court. The guardian chosen must be over 18, a resident of the United States, not convicted of a felony and of sound mind.

For most judges the question is decided by what is in the minor’s best interests of the minor child. The act often repeats that phrase, “the minor’s best interests,” stating that it should guide the judge’s decisions as to who assumes the role of guardian.

The procedure for the choice of guardian starts with the notification of interested persons, usually close family members, that the court will appoint a guardian. People may then petition the court to act as guardian for the minor, and the court will weigh the evidence and use its judgment to try to determine who can best raise the child. Minors over the age of 14 also have the option to nominate their own guardian, subject to review by the court. While these proceedings can often go smoothly and amicably, they can also be more acrimonious, depending on the family relationships involved.

If you are a parent and haven’t made provisions for guardianship of your children you should consider whether or not you want a judge that has never met you and barely met your child to make the determination of what is in their best interests.

Other complicating factors that an estate planning attorney can help you work through are disabled children, learning disabled children, how to keep all of the children together and how to manage combined families along with many other issues that are part of the modern family.

How to Avoid the Guardianship Proceedings

In order to avoid a drawn-out court battle, parents can take control of the situation. Illinois law gives parents the opportunity to name a guardian during their lifetime either in their will, or in a separate document. While the court still reviews this choice, the parents get much more control over their child’s future if they appoint a guardian. Rather than making the court guess at who would best raise the child, it can take the parents’ preferences into account, only overruling them if it finds “good cause” that the parents’ appointment would not be in the minor’s best interest.

If you are thinking about preparing a Will, or want to ensure the future security of your children, contact a Chicago estate planning lawyer today. We serve many northwest suburban areas including Arlington Heights, Schaumburg, Buffalo Grove, Palatine, Rolling Meadows, and other nearby communities.


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