Q: What is Probate?

A: Probate is a legal preceding that supervises the collection, liquidation and distribution of the Decedent’s property.

Q: Is all of the Decedent’s property subject to probate?

A: No.  Some or all of the Decedent’s property may be held in Joint Tenancy, in an account with a “Payable upon Death” or beneficiary designation or held in the Decedent’s Trust.  Simply put, probate property is any property that is not titled in such a way as to provide a successor owner.

Q: What if the Decedent had a Trust but not all of the Decedent’s property was owned by the Trust?

A: In fact, it is very common that some of the Decedent’s property in not owned by the Decedent’s Trust.  Some property gets overlooked or could not be put into the Trust.  Some property, such as a personal injury claim or a wrongful death claim does not even exist until the Decedent’s death.  For these reasons most Estate Planning attorneys provide their Trust clients with a “pour over” Will to control any of the Decedent’s property not owed by his or her Trust at the Decedent’s date of death,

Q: If the Decedent put most of his asset’s in Trust but missed one or two assets, does the Decedent’s estate still have to be probated?

A: Generally all probate assets have to go through probate.  However, Illinois allows a simplified, less expensive, probate procedure if the total of all probate assets are less than $100,000 and all claims against the Decedent’s estate have been paid.

Q: How long does a Probate proceeding last?

A: The length of time a probate proceeding may last depends upon many factors.  All probate proceeding must remain open for a minimum of six months after the first date the notice of the probate proceeding is published in the newspaper.  Most probate proceedings last between 12 and 24 months but some can be open for many years. 

Q: What is the difference between an Executor and an Administrator?

A: An Executor is named in the Will to handle the administration of the estate.  An Administrator is used when there is no Will or if all the named Executor can not or will not serve.  The Administrator does the exact same job as the Executor but but has to petition the court to become the Administrator.

Q: Is it necessary for and Executor or Administrator to be bonded?

A: Unless specifically waived by the Decedent in his Will, the Court will require the Executor to purchase a surety bond to insure that the Executor does not abscond with the assets of the estate.  Most Wills however waive the requirement of a bond of any named Executor.  Administrators will always need to purchase a bond.

Q: What is the difference between a Legatee and an Heir?

A: A Legatee is someone who has been named in a Will as a beneficiary.  An Heir is a person related to the decedent who would inherit some or all of the decedent’s property if the Decedent had no Will.  A person can be both an Heir and a Legatee.

Q: What if I am an heir or legatee but do not trust the Executor/Administrator?

A: Typically an Executor or Administrator petition the court for unsupervised administration.  This means that they do their job without direct supervision of the court and are required only to provide a First and Final accounting to the heirs and legatees.  Any party of interest (i.e., an heir, a legatee or a representative of a minor heir or legatee) can petition the court to demand a supervised administration or that an independent administrator be appointed.

Q: Can the Decedent’s property be lost to the State?

A: The property will not be lost to the State.  Occasionally, banks, financial institutions and other entities will turn over unclaimed property to the State but the property can always be claimed by the rightful owners or heirs.

Q: What If the Decedent had more than one Will?

A: Generally, the most recently dated Will is the Decedent’s correct Will.  Most Wills begin with language stating that “This is my Last Will and Testament, hereby revoking all my prior Wills and Codicils made by me”.  However, If the Decedent left more that one originally executed Wills you should keep all of them until the Court have admitted the correct Will.


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