Being named executor of an estate for a family member or friend, is a responsibility that should be taken seriously. You will be considered the personal representative for the estate, meaning it is your responsibility to manage the estate and distribute the assets to the heirs or beneficiaries according to the Illinois Probate Statute. If done wrong, you could be held personally liable for damages, usually monetary, to all who were wronged.
Depending on what exactly the estate planning documents say, there are certain procedures you must follow as the executor. If all assets are accounted for and named within a trust or contain beneficiaries, you may be able to distribute all the assets to the beneficiaries without having to go through the court process.
Here are three common situations when a probate case does not have to be opened:
- The estate contains no real estate and all assets have beneficiaries,
- The estate has no claims or debts (including credit card debt), and/or
- The estate is comprised of less than $100,000.00
If the estate has less than $100,000.00, Illinois has a great tool called a small estate affidavit. This state document can be used to transfer assets without going through a full probate case.
What happens, however, if all assets were not properly titled in the name of a trust, contain beneficiaries, or if the deceased did not complete estate planning documents? The answer is that a probate case will have to be opened.
If you have to open a probate case, in Illinois you will have to work with a probate attorney. The process is complicated with many official court forms and timelines that must be complied with and executed properly. All legal fees come out of the estate and as the executor you should not have to pay any out-of-pocket expenses. Additionally, an executor can pay themselves a reasonable hourly wage for time spent executing the executor duties. However, oftentimes, the initial court filing fee and attorney fees must be paid upfront before the case is filed. That means the executor has to come up with those funds personally and pay himself back after the probate case is open and he has official access to the assets in the estate. Even if you do not think a probate case is necessary, it would be in everyone’s best interest to talk to a probate attorney that you can trust. Most probate attorneys offer a free consultation to help you determine if a case needs to be opened.
If you determine you have to open a probate case, here are some things to keep in mind: First, you can only open the probate case in the county where the deceased called home (their official residence). This involves filing a petition in the appropriate circuit court. Once that task is completed you will have to let every heir and creditor know a probate case has been opened
If the deceased did not have estate planning documents or a will, when opening the probate case, the court will have to appoint an administrator to handle the estate. This person is responsible for managing the estate during probate.
The probate process can be time-consuming and complex. You do not have to tackle this burden by yourself. We have personally opened and closed countless estates in Kane County, Cook County, DuPage County, DeKalb County, Winnebago County and throughout Chicagoland. We would be delighted to provide you with quality legal services for your estate and look forward to working with you.