The Illinois Probate Process Explained by the Springfield Illinois Probate Attorneys at the Noll Law Office
When a person passes away, their estate may enter probate. “Probate” is the legal term for the process of opening an estate in the county where a person lived prior to their passing. When a person’s estate proceeds through the probate process, debts are paid, heirs receive their inheritance, and other routine assets are distributed. Probate isn’t always required, but it can be challenging and complex for family members to deal with on their own. That’s why working with Springfield, Illinois, probate attorneys is helpful. It creates a way for you to manage this process with professional guidance and advice.
At the Noll Law Office in Springfield, Illinois, their probate lawyers are well-versed in Illinois probate law. If your loved one has passed away, they can help you through the probate process. Their goal is always to ensure you know your rights and obligations under Illinois law and make the process as smooth as possible.
Since 1948, the attorneys at the Noll Law Office have provided exceptional legal services to Central Illinois. Daniel Noll and Sarah Noll live and work in Springfield, Illinois. Their office is located directly across the street from the Sangamon County Courthouse at 930 E. Monroe, Springfield, Illinois. They offer free initial consultations so call them today at (217) 414-8889.
What Do Probate Attorneys Do?
Generally speaking, probate attorneys help persons understand when probate is necessary and help individuals navigate the probate process. Springfield probate attorneys can be retained to represent an Executor, Independent Administrator, or potential heir after a person passes away. They can also write up estate documents prior to an individual’s passing.
Securing Your Legacy by Using a Probate Attorney
Probate attorneys are often contacted after a person dies. While they certainly can help after a person passes away, the lawyers at the Noll Law Office also work with clients who wish to reduce the risks and challenges that probate can pose prior to that person’s death. This generally involves drafting wills and other estate documents.
What Are the Requirements for a Will?
Wills must be written, and generally signed by the testator (the person who is obtaining the will) in the presence of two or more credible witnesses. Beneficiaries should not act as witnesses if at all possible.
The testator may bequeath property to individuals, corporations, trusts, and the like. Upon death, the Executor of the will may obtain an order from the court to “admit” the will to “probate.” This is just the fancy legal term of opening a probate estate within the court system in order to transfer the real and personal estate of the testator bequeathed in that will.
Do I Need a Trust?
Large estates, in particular those with more than $4,000,000.00 in assets, will often benefit from the creation of a trust. Estates that seek to care for a disabled loved one or minor children may also benefit from the creation of a trust. You should speak with an Illinois probate attorney to determine if a trust is right for you.
Trusts are created when the legal title to someone’s property is separated from the equitable title. Put another way, a person transfers property (the settlor or grantor) to another person or entity (trustee), who holds that property for the benefit of yet another person (a beneficiary). There is usually a trust agreement which is a written document stating how the trust must be managed and distributed.
In Illinois, there are three common types of trusts. These are revocable trusts, irrevocable trusts, and testamentary trusts.
Revocable Trusts (Living Trusts)
Revocable trusts, often called living trusts, are trusts that are established during the settlor’s lifetime. They are also sometimes called inter vivos trusts and are very handy with estate planning because they can avoid the probate process while maintaining the ability of the settlor’s right to change the terms of the trust. They are extremely helpful for tax issues that arise for large-dollar estates. The settlor can also act as the trustee in order to retain control over the assets of the trust. So long as the trust is revocable, it can be amended by the settlor, assuming that the settlor retained his or her testamentary rights.
Once the settlor dies, the trust becomes irrevocable. There are also benefits of using revocable trusts for disabled persons. It is important to name a “successor” trustee so that if the original trustee can no longer act as the trustee, an approved, pre-identified party can substitute as trustee. Oftentimes, family members such as children or a spouse are named as the successor trustees. Alternatively, “joint trusts” with multiple settlors can be considered, in particular with married couples.
The revocable trust will generate income or loss. Regardless of the outcome, the income and loss of the trust flow through to the settlor. If the settlor is the trustee, the settlor may use his or her social security number as its taxpayer identification number to avoid a separate tax return.
The property held by the trustee is often referred to as the trust estate. If a person has the right to income from the trust, they are called an “income beneficiary.” If a person has a future interest in the trust, they are referred to as a “remainder” beneficiary. This person’s interest vests when the current beneficiary’s interest has terminated.
Irrevocable trusts are created with an eye toward a permanent transfer of assets to the trust. Usually, settlors should not act as trustees with irrevocable trusts. These are often used for life insurance trusts, charitable trusts, gift trusts, and the like. If this is something you are interested in, you should contact a knowledgeable attorney who can help you through this process.
Testamentary trusts are created through the will of the decedent. They can have many provisions that are similar to a revocable trust and can also be used for charity. The Noll Law Office attorneys can discuss this more specifically at an estate meeting.
I Own Property in a Foreign Country. What Kind of Will Do I Need?
If you have or will purchase property located in foreign countries, you should strongly consider either obtaining an “international” will or creating a separate will for property owned in that foreign country that is created pursuant to that foreign country’s laws. It is often possible for your attorney to insert provisions to your domestic (Illinois) will to avoid further disputes.
Simply stated, foreign countries, depending on that country, may not recognize Illinois probate law or wills executed within the United States when interpreting how your estate property should be distributed.
If you have potential beneficiaries, such as close relatives, who live in a foreign country, you should strongly consider including the relatives’ biographical data (dates of birth, etc.) in the will, together with their last known addresses and phone numbers. It can sometimes be difficult to locate next of kin that is located in foreign countries, and therefore it is helpful for your estate to have basic information about your beneficiaries prior to your death, to avoid delays in probate.
Finally, if you plan on permanently moving to a foreign country for retirement or other reason, you should notify your attorney and make an informed determination on whether you should obtain a will in that country or consider an international will.
How Does Probate Work in Illinois?
Probate in Illinois is a court-supervised process. It can sometimes be avoided if a person has created an estate plan prior to their death, in particular, if a trust has been created. It can also be avoided if a person has a very small estate. Generally speaking, a “probate” attorney will help with all of these situations, even if no formal probate process is required.
Filing A Will
In Illinois, a last will and testament are to be filed with the Circuit Clerk of the County in which the person resided within 30 days of the person’s death. The wills may or may not result in a probate estate being opened with the Circuit Court in that County. Sometimes a person may have created certain trust provisions to avoid probate. At other times, a small estate affidavit is all that is required due to the size of the estate.
To begin that probate process, a petition to admit the will and for letters of office is filed with the Circuit Clerk. A probate attorney usually drafts the petition. The Noll Law Office, located in Springfield, Illinois, is a fantastic option if you require this assistance.
The Court will then typically issue “Letters Testamentary,” which allows the Executor to begin the process of administering the estate. This allows the Executor to sell and distribute property, pay debts, and make accountings for estate assets. An oath of office must be filed, confirming that the Executor will uphold his duties on behalf of the estate. The potential heirs and legatees must be notified of the proceedings and given certain notices as well. Minor children are usually appointed a Guardian ad Litem to oversee the distribution of their portion of the estate. There are special protections for disabled persons as well.
Naming an Executor and Renouncing a Will
The text of the will contains a provision appointing an Executor (and sometimes an alternative Executor), who will take care of administrating the estate in accordance with the deceased person’s will. This includes the distribution of the decedent’s property in accordance with the terms of that will.
A spouse may sometimes “renounce” a will. This means that, whether or not the will contains a provision for the benefit of the surviving spouse, the surviving spouse will take one-third (⅓) of the entire estate if the testator leaves a descendant or (½) of the entire estate if the testator leaves no descendant.
Dying “Intestate” or Without a Will
If no will exists (“intestate”), an Independent Administrator is often appointed. Oftentimes, this involves petitioning the estate to appoint an “Independent Administrator,” who functions much like an Executor in terms of administering a decedent’s estate.
Petitions are filed with the Court seeking appointment of the Independent Administrator, notices are issued to potential heirs or descendants, and the Court will, after hearing, issue letters of independent administration. This provides the legal authority for the Independent Administrator to move forward in processing the estate. Once appointed, the estate is oftentimes handled in a very similar manner as if an Executor was appointed.
An Executor or Independent Administrator has been Appointed, What Now?
Generally, after an Executor or Independent Administrator is appointed, any final bills that a person owed prior to his or her death are paid. “Claims” may be filed by creditors, seeking repayment from the estate for all amounts due and owing to the creditor. The Executor or Independent Administrator will usually attempt to resolve those claims with the help of their probate attorney.
Beneficiaries must generally be notified of estate proceedings, and an affidavit of heirship should be submitted to the Court. A notice of a hearing is typically mailed out to the interested persons, which allow them the chance to appear at the hearing and raise any legal issues that they may hold.
Notice is also typically given to creditors. The Executor or Independent Administrator usually files a notice in the local newspaper, giving any interested claimants a statutorily set amount of time to file a claim against the estate. Your attorney can discuss this more deeply with you at your intake meeting.
The Initial Accounting
An inventory of assets generally is created that itemizes the assets of the estate. That personal property may be personal effects such as family jewelry or antiques. The court might appoint up to three disinterested appraisers to create valuations for those assets, depending on the facts and circumstances of the case. The accounting may also include cash from checking or savings accounts or cash from the sale of estate property such as vehicles, stocks, bonds, boats, and more. Every case is different, but all probate assets should be listed.
Illinois law, by virtue of the Illinois Probate Act of 1975, determines who has priority of payment when estate assets are distributed and claims are paid. It can be very complex, and an attorney is usually obtained when there is pending concern about the priority of payment and/or distribution.
Payment of Debts
Sometimes, especially with large-asset estates, taxes might be owed. Property taxes on homes may need to be paid. Other expenses may exist. Probate attorneys help Executors and Independent Administrators navigate the process of liquidating the estate, resolving claims laid against the estate, and distributing the estate to the heirs and legatees.
Inventories and appraisals of properties will commence. The petition may seek “independent administration” so that less court oversight occurs. The Executor usually has quite a bit of discretion in processing the property in accordance with the will’s parameters. This may include selling real estate or personal property, distributing personal effects such as specific items of jewelry to the person named in the will, and other routine actions taken to dispense with the estate.
If you have questions about the estate process, please contact the Noll Law Office today. Its experienced attorneys can answer your questions and provide legal advice on how to move forward through the estate administration and probate process.
Distribution of Assets
If a person dies without a will, the Illinois Probate Act provides that after all just claims against his estate are fully paid, descends and shall be distributed as follows:
- If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes.
- If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes.
- If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.
- If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.
- If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent but a grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal grandparent or descendant of a paternal grandparent, but a maternal grandparent or descendant of a maternal grandparent of the decedent: the entire estate to the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes.
What if the Deceased Person Has a Small Estate and Little Assets?
In Illinois, if the estate value is less than $100,000.00, a small estate affidavit may be used instead of the formal probate process. This involves filling out a small estate affidavit after compiling a list of any unpaid debts owed by the decedent.
The next of kin will also need a list of all the property and assets in the estate. One cannot use a small estate affidavit to transfer real property, such as a house. However, there are other ways to avoid probate if one has real estate, such as changing the deed to the property or creating a trust.
The practical effect of the $100,000.00 limit is huge. It means that, with careful planning and execution of the plan, even larger estates can be settled, completely and legally, without any need to file a probate proceeding in Court. The calculation of estate size for purposes of using a small estate affidavit includes only probate assets. It usually does not include contractual life insurance payouts to a named beneficiary, joint tenancy accounts, or other non-probate assets.
Generally, if the estate amount is less than $100,000, a sworn affidavit will suffice for the transfer of the assets. There are always exceptions that may apply. Therefore, it is strongly advised that you obtain an attorney to help you determine whether a probate estate is necessary or if a small estate affidavit is sufficient. The Springfield probate attorneys at Noll Law Office can navigate you through this process and let you know if the small estate affidavit applies to your case.
What Taxes Do I Pay in Probate?
You should speak with a tax representative about the assets you will have in your estate and whether a trust is necessary. All of this will impact the potential taxes that an estate owes, and if owed, will be paid by an Independent Administrator or Executor. There are exceptions with trusts. You should also speak with a probate attorney if you have concerns about taxes because the law can become very complex very quickly.
In 2021, the federal estate tax was approximately 11.7 million dollars. The tax was set to rise to $12.06 million in 2022, however, legislation was proposed to drastically reduce that threshold, given the costs of the Covid-19 pandemic. The law may change again.
The Illinois state estate tax rate is graduated with the top tier being 16%. However, it also historically only applied to estates worth more than $4 million. The rates are all subject to change by the legislature, so this may change.
Simply put, as of the year 2022, this means that if you pass away and your total estate is worth less than $4 million, the estate won’t owe a tax obligation to the state of Illinois. If your estate is worth more than $4 million, though, there is a progressive estate tax rate for all wealth your estate will have to pay before money can be dispersed to your heirs. But again, this threshold may change.
Indeed, the estate tax rate will probably change in future years. If your assets will exceed or approach that threshold, the Noll Law Office strongly recommends that you consider forming a trust as opposed to a simple will in order to better protect your assets.
How Do I Pick an Attorney?
Choosing an attorney to help with probate during your lifetime is the first step. Choose an estate planning attorney specifically who can:
- work closely with you to create a will
- develop trusts to protect your assets, and
- build a plan for your assets to minimize taxation against them.
If your loved one has died and you need legal help navigating the probate process, it is highly encouraged that you to choose an attorney with ample experience with Illinois probate law. This should include experience working closely with you to manage creditors and claims against the estate. Your attorney can also help you overcome any challenges to wills or decisions made during the process.
How Does the Noll Law Office Help Protect Your Family and Your Legacy?
With years of combined experience, the Noll Law Office is readily available to work closely with you to help you manage probate. Their goal is to protect your family and assets while also supporting you in preserving your legacy through the legal process. Contact them today to speak to our Springfield probate attorneys for a free initial consultation.