Probate refers to the legal process in which the estate of a deceased individual, called a decedent, is handled under the supervision of a court. A probate court may also be known as a Chancery Court or Surrogate Court, depending on the jurisdiction. The probate process may be used to establish the legal validity of a will, to distribute assets to the beneficiaries named in the will, and to pay off any taxes and/or debts owed by the deceased’s estate.
The five main steps to the probate process in Chicago, as well as in many other jurisdictions, include:
- Filing the will in the probate court and notifying any beneficiaries;
- Providing notice to any creditors;
- Taking an inventory of the assets;
- Paying any outstanding expenses from the estate; and
- Distributing the assets to the named beneficiaries.
The probate process in Chicago will begin with a petition in the local probate court. The executor, or individual who is in charge of handling the estate, will be appointed. A hearing notice will be sent to any named beneficiaries informing them of the date, time, and location of the hearing. This hearing notice may also be published in the county newspaper where the petition was filed.
After an executor is appointed, all creditors of the estate must be notified. This permits the creditors to make claims against assets in the estate. In Illinois, this notice is required to include the name and address of the executor and the attorney. A creditor must make its claims prior to the date provided in the notice.
The executor must then take a complete inventory of the assets of the estate. In Illinois, the probate court may appoint up to 3 disinterested appraisers, or individuals who assess the value of property, to appraise the assets of the estate.
Before any assets are distributed to the beneficiaries, any and all expenses related to the probate process must be paid from the estate. These expenses are outlined in the Illinois Probate Act and include:
- Funeral and/or burial expenses;
- An award to the surviving spouse or child;
- Any debts owed to the United States;
- Money owed to employees of the deceased;
- Debts owed to Illinois and/or any city, township or county therein; and
- Any miscellaneous claims.
Lastly, after all the expenses of the estate have been paid and all creditor claims are settled, the assets can then be distributed to the beneficiaries. In order for this to occur, the executor petitions the court for the distribution of the assets in accordance with the will, if in existence, and, if not, in accordance with state law. Following the granting of the petition by the court, the executor will:
- Create new deeds for real property, if applicable;
- Transfer stocks and/or other funds, if applicable;
- Liquidate assets as necessary, and
- Tie up any remaining loose ends.
How Do You Contest a Will?
It is important to note that contesting a will is a challenging, time-consuming, and often costly process. If enough clear and convincing evidence is not presented to show the basis for contesting the will is valid, the court is unlikely to interfere with the testator’s wishes as written in the will. In addition, it is difficult to dispute the terms of a document whose author is no longer available.
Not everyone who knows the testator may have standing to contest the will. An individual wish standing to contest a will is an individual who is named as a beneficiary in the will. The laws regarding standing will vary by state.
There are several legal arguments, or grounds, that allow an individual to contest a will, which may vary from state to state. These grounds typically include:
- A mistake and/or error in the will, which may proven and/or clarified by other documents authored by the decedent;
- Any ambiguous language used in the will;
- The testator’s lack of mental capacity; and/or
- Fraud or duress during the creation and/or modifications of the will.
It is important to note that some will contain an anti-contest provision which causes any beneficiary who contests the will to lose their inheritance. It is also important to be aware of the statute of limitations, or time limit, on filing a will contest.
Can You Contest a Will Before Death in Chicago?
Generally, it is not possible to contest a will before the testator’s death. This is because a will is meant to take effect after the testator’s death, so, prior to that, it is merely a future set of instructions that have not been acted upon. Additionally, the testator may re-draft, amend, and/or change the contents of the will at any time.
Can You Contest a Will After Probate?
In most cases, a will should be contested prior to the probate process beginning and before the lapse of any statutes of limitations. This is to prevent indefinite litigation that would keep the beneficiaries and/or creditors from receiving what they were due from the estate.
Although it is difficult, it may be possible, under certain circumstances, to contest a will after probate. For example, if the will is forged and/or fraudulent and/or if a party believes the testator lacked testamentary capacity at the time the will was drafted and signed, it may be contested after probate.
Other possible grounds for contesting a will after probate include:
- Improper execution of the will and/or improper procedure; and/or
- Improper administration of the estate.
It is important to note that even if the above-named conditions exist, the party contesting the will must be within the statute of limitations for after probate will contests. The time frame requirement will vary by state.
What Happens After a Will is Contested?
After a petition to contest a will is filed, the probate court schedules a hearing. Prior to this hearing, the petitioner should gather any relevant evidence for their claim. During the hearing, the court will review this evidence and the instrument itself, as well as any evidence offered to the contrary.
If the court finds the will is invalid, it will request previous drafts and/or surviving copies of a remaining valid will. If one exists, the court will follow the directives therein. If none exists, the court will treat the estate as if the testator had died without a will. The estate would then be distributed according to the intestacy laws of the state in which the probate proceeding is being held.
Can You Avoid Probate Court in the Chicago Area?
Yes, it may be possible to avoid the probate process. Individuals may wish to do so because it is often time-consuming, expensive, and does not allow for any privacy as probate hearings are matters of public record.
A living trust may be used to avoid probate. It is formed when the owner of the property and/or assets is still alive. The property owner appoints a trustee to oversee the trust. In the event of the owner’s death, the trustee will also become responsible for distributing the contents of the trust to the assigned beneficiaries. This process can be completed with simple paperwork and does not require probate.
Probate may also be avoided by ensuring life insurance policies and bank accounts are payable upon death. The funds will be automatically distributed to the beneficiaries without the probate process.
One last way to avoid probate for real property is by setting up a joint tenancy with a right of survivorship. A joint tenancy gives the parties an equal interest in the property. Therefore, if one of the parties passes away and the other is still alive, then the surviving party will automatically become the sole owner of that property due to the right of survivorship.
Do I Need a Chicago Lawyer for Probate?
Yes, it is essential to have the help of a Chicago probate lawyer for any probate issues. As discussed above, the probate process can be complex and costly. There are likely many duties, especially if you are appointed the executor, that you will not know how to complete without professional help.
If you are probating a will, it is important to have a local attorney who is experienced and familiar with local probate laws and requirements. A lawyer will be able to help you with any issue related to the will and represent you during court proceedings, if necessary.