Probate

Probate is the orderly method of distributing the assets of a deceased person following someone’s death. An estate maybe testate (died with a Will) or intestate (died without a Will). Intestate estates require Probate for appointment of an administrator and to determine how the administrator shall be allowed to act under that appointment. A testate estate generally has a person or persons suggested to be executor (s). In Illinois, if after determination and accumulation of assets not otherwise distributable which fall in the probate estate, if the amount falls below the current statutory limit and the other statutory requirements are met, it may be possible to administer an estate without court intervention or supervision. Even with a testate estate, despite the suggestion in the Will for executor, the court has final authority to appoint the executor. Unless there is a contest to the appointment, the first named executor that is alive, willing and able to serve is generally appointed. The Will determines if bond or surety is required, however the judge has wide discretion to order contrary to the Will if there is a contest to the Will or if the heirs are at odds. The Executor can also opt to post a surety bond if circumstances seem to indicate this to be wise and prudent.

Probate is initiated with the filing of a petition to open the estate, to enter the Will into the probate estate and to appoint the Executor. There are specific rules and statutes that provide for notification to heirs and creditors of the estate and time frames for heirs to contest the proceedings or any portions of the petition. If a Will existed, the statute requires that the original Will is to be filed within 30 days after the death of the testator, however this filing does not constitute the opening of the estate. The Petition opens the estate for further adjudication. Probate estates must publish in the newspaper and the date of the first publication of the series of 3 weekly notices starts a 6 month period for claims to be submitted. There are specific statutory provisions for distributions and payments from the estate and these must be followed strictly or the executor/administrator will be held responsible.

Contrary to misconception, Probate does not have to be overly expensive or complicated and in some situations, can be beneficial to certain estates. When there is no Will (called an “intestate estate”), court intervention is required and the current Probate Act directs to whom and how the assets are to be distributed. Without publication and probate, the statutory claims period is 2 years after the date of death, which also applies for all trust estates. If there are known claimants and creditors to the estate (and Medicaid is an automatic claimant for a deceased recipient who received services via Medicaid), the shortening of the claims period from 2 years to 6 months can be a beneficial situation to limit the time the estate must be kept open and managed by the executor. All claims must be timely filed or are forever barred from payment. The Executor/Administrator is responsible for directly notifying all known creditors and publishing for unknown creditors.

Peggy Pratscher is knowledgeable and experienced in Probate administration and assisting Executors/ Administrators to undertake and administer their duties and responsibilities. She is regularly prepares the necessary documents and provides representation in court on behalf of the executor to assist with the timely and efficient management and distribution of the estates.