Property that is not settled with a will or trust must either pass automatically to the heirs or be devised through probate. Probate is a legal process through which a will is accepted (or “probated”), or assets are devised to beneficiaries. Probate allows potential beneficiaries to submit claims to a person’s estate.
Wills that are not contested avoid probate; the estate administrator need only file a copy with the court as a public record.
An estate is composed of the assets and debts left behind by a person when they die. Some assets are also automatically devised, for example, jointly held bank accounts or property owned in joint tenancy.
Illinois reviews estates under two regimes: limited and full supervision.
Under limited supervision, the matter is filed with the court. However, the probate judge reviews and approves the final accounting that is submitted by the executor. The judge does not conduct any independent inquiry into the accounting, the judge’s only purpose is to ensure that the accounting and devises conformed to basic principles of law.
Under full supervision, the probate judges take a more substantial role. The judge may conduct her accounting, hire experts to value items in the estate, and take other active measures to assess the value of the estate. The judge will also use the law and her interpretation of the facts to decide who receives what from the estate.
Finally, under both situations, the judge will issue a “letters of office” which appoints someone as the legal representative of the estate (i.e. the executor).
Typically full supervision is not utilized unless there is an issue with distributing the estate, for example, legitimate concerns regarding the enforceability of the will or claims from family members. However, most estates will never pass through full probate.
Full probate is reserved for larger estates that are left without a testamentary instrument and are subject to protracted dispute over the division of assets. Most estates qualify for either limited supervision or as a “small estate.”
Illinois law permits a simplified probate process for estates that contain less than $100,000 in total assets and possess no land (i.e. estates that include a family home are excluded from this provision).
For small estates, the executor prepares an affidavit that summarizes the estate and how the assets should be distributed and files it with the court. The affidavit serves as the basis for distributing the property.
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