Top 5 questions about probate


About half of the people who call me about probate cases are often experiencing emotions: grief, confusion, bitterness, and sometimes a sense of peace. Out of all of these, confusion tends to multiply the most when it comes to trying to figure out what to do next with the deceased loved one’s legal affairs and property.

Here’s a short list of Frequently Asked Questions about the probate process that I hear on a regular basis:

When is the right time to divide property among my family?

Although many people think that once a person passes away, all of the property leftover automatically goes equally to the spouse or kids, the actual procedure is a bit more complicated. The best answer is usually not to touch or divide anything right away. Instead, it is probably a good idea to leave everything as it is, unless there are emergencies to take care of, automatic debits to cancel, etc. Then, try to find a copy of the loved one’s will, and try to identify the state of assets and liabilities of the loved one’s estate. This information is important to be able to proceed, as is any information about tax liens, recorded judgments, bank account balances, etc.

There is no will; now what?

If there is no will to be found, either hidden in the loved one’s house or in a safety deposit box, then it is possible that a will was never made. Usually this means the probate process will go forward “intestate,” and thus, subject to default rules under the Probate code. Generally, this means an estate must be opened in a court proceeding, in order to formally distribute the remaining assets and deal with the remaining liabilities, before distribution of any property to heirs.

We found the will; now what?

Finding a will may not make the probate process any easier; a will allows probate to go forward “testate,” and thus, subject to the will’s provisions instead of the default rules. But an estate often still must be opened in court, and an executor named who will carry out the probate process. Nonetheless, filing the will with the proper courthouse is something that should be done very quickly to avoid any statute of limitations issues.

Do I even need to go to probate?

Sometimes this is not necessary; in Illinois and in many states, a small estate affidavit can be used to skip the entire probate procedure, but only in certain cases. Usually this is for estates with under $100,000 in assets, no outstanding liabilities, and other hallmarks of simplicity. However, many estates that might appear to qualify for this type of affidavit often fail the statutory test, so it’s good to check with an attorney about this, to avoid expensive problems later on.

How long does probate take?

The probate process often depends on the size of the estate, the number of known and unknown creditors, the type of property involved, and the potential issues that might arise. For example, a small estate affidavit proceeding can be done in under 6 months, whereas the liquidation of a business in debt, the resolution of inheritance claims, or a situation where real estate property needs some heavy fixing-up might take a few years. Either case is something an experienced probate attorney can help with to avoid common mistakes and problems that might arise.

If you have experienced the loss of a loved one and are trying to figure out what happens next (and you live in the Chicagoland region), please view my website for more information about how I can help sort things out.

DISCLAIMER: Please do not prepare your own documents / filings after reading this blog, without consulting an attorney first about your specific situation. I make no representations or guarantees here as to the applicability of any claim in your specific situation. This blog is ADVERTISING MATERIAL only, and should not be relied upon as legal advice, especially if you are not an Illinois resident. Please contact me if you have a legal question or concern, as no attorney-client agreement will exist between myself and any readers of this blog unless it is signed in writing.

Image by under attribution license


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