Probate is the judicial process whereby a will is “proved” in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.
Illinois law requires that any person who possesses the Will of a decedent file it with the Clerk of the Circuit Court of the county in which that individual resided within 30 days after the death of the testator is known to him.
If the decedent had a will, the person named in the will as the Executor will usually serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
Illinois law provides that the Executor is entitled to “reasonable compensation” for their services. This amount could vary and is case-dependent.
If trust was drafted properly and is fully funded, then usually no. Sometimes, if a trust was prepared years ago and was never updated, then newly-acquired assets may not be owned in the name of the trust and must therefore go through probate. That is why it is so very important that you have regular reviews of your plan and assets so the planning you do now works as planned later.
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or accounts titled as “Transfer On Death” are usually not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.
The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for some cases.
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