Lawsam.com Estate Planning, Real Estate, Elder Law

Probate

While much of my practice involves helping people avoid probate by using revocable living trusts, I also handle probate estates. You will need to open a probate if the deceased person had more than $50,000.00 in assets (usually a house, stocks or bank account) in the deceased's name alone.

There are two types of probate estates: testate, meaning the person had a will, and intestate, meaning there was no will.

Will. If the person died with a will then he or she dies “testate” and the original will is needed to start the probate; a copy will not suffice. It is a common myth that wills avoid probate. They don’t. Wills must go to probate court. Probate is simply a way of assuring that the assets of an estate are distributed to the correct parties and all creditors are paid. There is a six-month claims period in Illinois. Assets from the estate generally are not distributed for six months until the claims period passes. The will is filed and the executor asks the court to be appointed so that all of the assets can be collected. A testate probate estate usually involves at least two hearings before the probate judge, one at the beginning and one at the end. In between, the executor gathers all of the assets, files tax returns, pays debts and then distributes the assets to the heirs. The cost of an average probate is usually about $2500.00. Most attorney charge between $150/hr and $200/hr. and 10 to 20 hours would cover most situations. (This does not include filing fees of about $450 in Cook County and a bond in intestate cases-see below.)

No Will. If a person dies without a will he or she dies “intestate.” The estate still must go to probate court.

It can take longer to open an intestate estate because there is a 30 day waiting period after the executor asks to be appointed. Remember, the deceased had no will and did not name an executor so someone has to step up and act as executor. The waiting period is designed to avoid a “rush to the courthouse” by heirs to be appointed executor. The costs in an intestate estate are greater because a “bond” is needed to protect the heirs of the estate from the executor running off with their money. The bond is usually between $500 to $2000 per year.

Note: This site is for informational purposes only. Please discuss your situation with the lawyer of your choice.