If a family member dies without a properly executed estate plan, those left behind are faced with a highly stressful and unpleasant experience. There are many questions that must be answered. If the person who died has assets equaling a certain amount and are of a certain type, the estate must go through the probate court process for it to be disbursed. First, the court local to the decedent’s primary residence must appoint an administrator, or personal representative, for the estate. One of the first questions asked is who is that person and how are they chosen?
When a person passes without a will, the legal process of accessing and distributing the assets is guided by the Illinois laws of intestacy. Not every estate must go through probate. In Illinois, if the estate is small, an Illinois small estate affidavit may be all the family has to complete and sign to get at the assets. However, if the IL small estate affidavit is not an option, someone will have to open a probate estate.
The Illinois intestacy statute provides a schedule of familial relations who have preference to be named as administrator of the estate. There is also a schedule of familial relations who are entitled to notice that the probate process has been initiated and their rights within the process. If you are wanting to serve as administrator of an estate, you must either be one of the familial relations with preference, or those familial relations must waive their right (in writing) to act as administrator. The order of preference is as follows:
- Surviving spouse
- Adult children
- Aunts and uncles
- Nieces and nephews
- Other relatives
- If there are no surviving relatives, the court may appoint a professional administrator.
If there are two or more persons with equal preference and desire to serve, the Illinois probate judge hearing the case has the discretion to name one or more of them to serve.
Once the right to act as the administrator has been established, the petitioner must ask the court in writing to be named administrator of the estate. If there are no objections, the petitioner will be named. If the proposed administrator’s appointment is challenged, the party or parties challenging the appointment will need to file an appearance in the case, make their arguments as to why the proposed administrator should not be appointed and the judge will determine who will act as administrator.
The administrator is responsible for managing and distributing the deceased person’s assets according to the IL laws of intestacy. Those duties include but are not limited to:
- Inventorying the assets, including real estate, bank accounts, investments, personal property, and debts;
- Notifying potential creditors and potential claimants;
- Paying claims;
- Liquidating real estate;
- Distributing the assets to the heirs based on the IL intestacy statute;
- Filing taxes; and
- Seeking court approval to close the estate.
If you are in a situation where a family member has passed without a will, it is advisable to consult with an attorney who specializes in estate and probate laws. Serving as an administrator is a complex and time-consuming process. You do not have to do this alone; we are here to help you. Contact us today.