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Losing a Loved One: What To Do After a Death

 Posted on March 07, 2023 in Estate Planning


Kendall County Probate Attorney

Losing a loved one is a complex and emotional experience. The death of a loved one is made more difficult when their estate and financial assets are in disarray. If the deceased person had a will or other estate planning documents, their estate would likely go through the probate court. Unfortunately, most people are unaware that a will must be probated and go through a "probate court."

Probate is the legal process to identify a person that will supervise the administration of one's will through the court process called "probate." The probate court will determine and gather the decedent's assets, pay their debts and taxes, and distribute their property according to their will or Illinois state law. 


Intestate Succession in Illinois

Intestate succession distributes a deceased person's assets when they do not have a will. When a person dies without a will, the decedent dies "intestate." In Illinois, an intestate person's assets are governed by the Illinois Probate Act. Therefore, under Illinois law, a deceased person's assets are distributed consistently with the Illinois Probate Act. Intestate law will identify the surviving spouse, children, parents, or other relatives to determine the proper heir of a deceased person's estate. Illinois law assumes that a dead person would distribute their estate to their surviving spouse (50 percent) and any surviving children (50 percent). Therefore, the deceased person's children shall have 50 percent of the assets in equal shares. Without a surviving spouse, the entire estate will be distributed to their children per stirpes (in equal shares). If any children have deceased, the deceased person's children will inherit their parent's share of their estate. If no children exist, the surviving spouse will inherit the entire estate.

Probate is required for certain assets. Assets without a beneficiary will become "probate assets" because the Illinois court will identify the rightful owner of that asset. For example, suppose a person has a bank account, life insurance, or other assets. In that case, the beneficiary or contingent beneficiary (if applicable) will receive their inheritance without the probate court's supervision. A non-probate transfer and asset is an asset that transfers outside of the management and administration of the probate court. 

Generally, a person has problems with real estate when they own the property in their name (without adding a child or spouse), or both surviving parents have deceased. If the asset is jointly owned, the ownership type of the real estate will govern whether the real estate is subject to probate court. Transfers made upon the death of a loved one often will transfer to the surviving spouse via the right of survivorship.

The Probate court process begins with calling an attorney's office in Yorkville and Kendall County. After discussing your situation with the attorney, we will identify applicable probate and non-probate strategies. For example, real estate is often sold without probate court as long as the heirs and legatees agree. However, if probate court is required, filing a petition is the initial step in the court process. The Petition will seek relief from the court by asking to appoint an executor or independent administrator to oversee the probate process.

The executor or administrator is responsible for gathering and inventorying the deceased person's assets, paying debts and taxes, and distributing the remaining property to the beneficiaries named in the will or consistent with Illinois intestate succession law. The executor is further responsible for paying the debts and taxes and distributing the property to the heirs and legatees. If one has real estate, the executor or administrator will hire a real estate agent and sell the house. 

The second step is to notify potential creditors of the estate and place an ad in a local newsletter to inform prospective creditors that they must put their claims with the Probate attorney within six months or their estate claims will be extinguished due to the statute of limitations. Probate court can be timely and include attorney's fees, court costs, and appraisal fees, and these fees and expenses can quickly add up.

There are alternatives to probate court if one plans their estate. Setting up a Living Trust is an excellent estate planning strategy to avoid the expense and pain of probate court. Similarly to a will, a Living Trust details one's wishes to inherit upon death or incapacity. However, unlike a will, a Living Trust does not require the probate court and administration process. A well-set-up Living Trust will produce a smooth transfer without any hassles or concerns (in most cases). 

Dealing with probate court can be a complex and confusing process. Hiring an estate attorney to assist you and your loved ones with this process is essential. An estate and probate attorney can guide you and your family through the pitfalls of probate and estate litigation.


Kendall County Probate Attorney: Helping Clients Sell a House With or Without Probate Court


Peace of Mind Asset Protection, LLC specializes in estate planning, real estate, and probate law. Our parent law firm, Gateville Law Firm, specializes in real estate law. Peace of Mind Asset Protection, LLC was set up to concentrate on estate planning and probate law. Our probate and estate planning attorneys guide clients through the complex probate and estate administration process. We handle probate and estate litigation in Yorkville, Oswego, Plano, Bristol, Newark, and surrounding areas of Kendall County (and nearby areas). Call us today at 630-882-2467 to discuss your probate matter with an experienced probate and estate attorney.


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