Frequently Asked Questions About Probate

Estate Administration ​

Small Estate (Summary) Administration

What is probate?

The term probate is commonly used to describe the court proceedings which govern the distribution of a person’s estate after their death.  Probate administration protects the interests of the decedent, heirs, beneficiaries, and creditors by overseeing proper performance of the laws of notice and distribution.  State intestacy laws are referenced to determine the allocation of the estate when someone does not have a will.  The laws are drafted with the intention of distributing an estate to the individuals most likely to have been named beneficiaries if the decedent had prepared a valid will.  For example, most people intend to leave their assets to their spouse and their children.  Intestacy laws are commonly drafted to reflect that intention.
 
Not all estates will need to go through the probate process.  Some estates are too small to qualify while others can be structured with an estate plan to avoid probate.
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What happens during the process?

There are many tasks for the personal representative.  If there is a will, it is filed and reviewed by the court for validity.  All of the assets that qualify for probate are collected, interested parties are notified (including heirs, beneficiaries, and creditors), accountings are prepared and maintained, valid debts are paid, taxes are prepared, the estate is liquidated or transferred, reporting requirements are fulfilled, and distributions are made.

​For what reasons or what circumstances would you need to probate an estate?

​Illinois state law requires probate administration of an estate when the probate assets in the estate exceed $100,000 in value or when there is real property (real estate) in the estate. 
 
Assets that pass to a beneficiary by contract or automatic transfer are not probate assets.  For example, a life insurance policy with a named beneficiary who is living at the time of the decedent’s death would not be considered a probate asset.
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​Is probate a difficult process?

​There are many rules and deadlines associated with probate administration that make the process challenging for someone who is unfamiliar with them.  The size and complexity of the estate, the number of heirs or beneficiaries, the number of creditors, and the types of assets in the estate are all additional factors that increase the level of difficulty.

​Who is in charge of the probate and what is their role?

​The personal representative of the estate, can be an executor or an administrator, is charged with the duty of carrying out the intentions of the decedent and following the probate code.  He or she is well-advised to consult an attorney for guidance and instruction.
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​Does the executor need to post a bond?

​A bond must be purchased when the Will directs it, the court requires it, or the law mandates it under the circumstances.  A surety bond is purchased through an insurance company and protects the estate assets from being lost.

What happens if there is no will naming an executor or administrator?

The State has already thought about it! State law lists an order of preference for nominees.  If the preferred individual does not want to accept the responsibility, he or she can nominate someone else or simply decline.
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How long does probate take?

The duration varies considerably depending on the State probate code requirements and the circumstances of the estate.  A few things to consider is how many assets need to be collected and liquidated, the location of the assets, the minimum claims period, the availability of the heirs and beneficiaries, the number of creditors, and any pending litigation of the decedent.  In Illinois, the most basic estate is likely to take nine months to administer and complex estates can take multiple years.  The process is Indiana can take from six months to multiple years.

​Do I need an attorney?

​Most likely, yes.  Neither probate judges nor court clerks will give you legal advice and the probate code in Illinois and Indiana is dense with rules to follow for proper administration.

​Do I have to use the attorney that drafted the will?

No.  The attorney who drafted the will may be a good source of information about the decedent’s estate but ultimately, the administrator should use an attorney he or she feels comfortable with and trusts.  
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​How much does probate cost?

​Probate administration is typically charged based on the amount of time spent on the matter.  The amount of time spent on administration will depend on the number of assets and where they are located, how organized the decedent was with his or her records, how efficient and organized the administrator is, the number of beneficiaries, whether distributions and notices must be sent to foreign beneficiaries, tax implications, the number of debts, and whether anyone objects along the way.   See FAQ about different ways attorneys charge clients.  In the region where Zivkovich Law Offices operates, the amount of time spent on the most basic estate including filing and other administration fees costs from  $5,000 - $6,000 and complex estates can exceed ten thousand to administer.

​If you have a last Will and Testament, is probate necessary?

​Yes, if there are probate-qualifying assets valued in excess of the state minimum threshold.

​What if I can’t find the  Will?

​After diligently searching through the home, safe or safety deposit box, researching state databases if your state maintains one, and contacting relatives, friends, or other personal advisers such as attorney, then the estate administration without a Will may proceed.  If a copy of a Will exists, you may be able to authenticate the copy and proceed with it.
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​Does the cost of probate come out of the estate?

​Yes.

​Do we have access to any of the assets during probate?

​The personal administrator will have access to the assets in order to pay debts, invest and transfer property, and make distributions prior to the end of administration.  Generally, if the estate has enough assets to cover potential expenses, partial distributions can be made to heirs or beneficiaries but a special type of bond will need to be purchased to insure the amount distributed.
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Small Estate (Summary) Administration
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What is the difference between formal probate and summary administration?

Formal probate administration takes longer.  An estate must qualify for summary administration.
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​What is a small estate affidavit?

​Small estate affidavits describe the extent of the decedent’s estate, the proper heirs and beneficiaries, creditors, and proper allocation of assets.  They are used to administer the estate of a decedent when the estate value does not meet the state threshold required for an otherwise probate administration through court.

​Who can sign a small estate affidavit?

​Any affidavit is signed under oath by a person with knowledge of the statements therein.
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​What is the role of the person signing the affidavit in the estate division and affairs?

​In estates where a small estate affidavit can be used, the person signing the affidavit is typically the person who is acting as the unofficial personal representative.

​Are there times when a small estate affidavit should not, or cannot, be used?

​Yes, they cannot be used to distribute an estate when the estate’s value exceeds the state minimum threshold or when there is real property (real estate) to transfer.
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