When is Probate Necessary in Illinois?

Illinois probate lawyersProbate is a court-supervised procedure in which the court determines who is supposed to inherit the assets of a deceased person. Though not always necessary, it is sometimes required. The following sections can help you learn more about the probate process in Illinois, including when it may be needed and how a seasoned attorney can help improve the outcome for entitled heirs.

When is Probate Necessary? 

Illinois’ probate laws are not dependent upon whether there was a valid will at the time of a person’s death. Instead, they focus on the assets that the individual owned and how they were titled. For example, assets that are found to be joint- or entirety-owned may be distributed without probate. Assets held in trust, assets assigned to a designated beneficiary (i.e. retirement accounts), and real estate assets with a transfer-on-death deed may be distributed without a will or probate as well. In contrast, an estate may be required to go through probate if:

  • The estate’s value exceeds $100,000,
  • Assets belonging to the deceased party were held solely,
  • There are concerns over the validity of the will,
  • The will contains confusing language,
  • Heirs cannot be easily identified,
  • Creditors make claims against the estate, or
  • The executor is suspected of wrongdoing.

Illinois’ Probate Process

To start the probate process, the estate executor must file paperwork with the Circuit Court in which the deceased party resided. (Note: If an executor of the estate was not named, or if there was no will, a vested party must step forward and ask to be appointed the estate’s administrator.) They must then gather, inventory, and safeguard all assets until they can be distributed. Typically, this occurs after creditors have been notified and valid claims have been paid. Taxes, which may be owed on estates that exceed $4 million at the state level and $5.45 million at the federal level, must also be paid before a distribution occurs.

Executors can usually navigate the process without gaining clearance from the courts, but there are situations in which the executor must gain clearance before every step. The latter is highly complex, and the assistance of a seasoned, competent attorney is highly encouraged. In all other cases, the path forward may depend greatly on the exact details of the case.

Contact Our Wheaton Estate Planning Lawyers

If you or someone you know needs assistance with the probate process, Stock, Carlson, Oldfield & McGrath, LLC is the firm to call. Our knowledgeable Wheaton estate planning lawyers are backed by more than 40 years of experience, and we preserve the best interests of our clients at every turn. Schedule your free and personalized consultation by calling 630-225-2500 today.

Source:

http://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60

Why Just Having a Will is Not Enough

Illinois Will and Trust AttorneyEveryone knows that they must get a will before it is too late. Those who know better know that a will alone is simply not enough.  It is true that having a proper will is an important tool in preparing for death, but it is only one in a set of tools that an estate-planning attorney has.

The estate-planning attorney uses these tools to achieve their clients' objectives. This is especially important for larger estates that may have several overarching interests.

One goal may be privacy. If a will goes through probate pursuant to the Illinois Probate Act, it will be a public document, allowing anyone to have access to it. This could create conflict in cases when a family member was left out of the will or gets a smaller portion of the estate.

One goal may be continuity. For example, if most of the assets are tied up in a business or some other venture that one may want to continue after their death, they leave sufficient assets to a trust, which would avoid probate and use the trust funds to continue the business.  The trust then would pay any income that it earns from its investment to the family members until a specific event occurs, e.g., the children turn a certain age.

Yet another goal may be tax planning. The U.S. has some daunting penalties if one's estate qualifies for the so-called death tax. If taxes are a concern, planning should begin well in advance. One can make intervivo gifts (gifts while one is alive) which may reduce the size of the estate. They can also create irrevocable trust, which is a good way of having some control of the funds while keeping the trust res out of the estate.

If done correctly, estate planning can ensure an efficient distribution of assets after death. If you have questions, contact an experienced Illinois probate attorney who can help you determine the best course of action.

Different Kinds of Trusts and Their Uses

If you have property or assets that you want to leave to your heirs, then you have several options.  A trust can shield these assets from taxation and also probate.  It allows you to protect your legacy and control your wealth.  They are essential to good estate planning so it is important to know what they can do.

There are two types of trusts.  The first is a living trust, which is called that because it is active during the grantors lifetime.  A living trust can either be revocable or irrevocable.  A revocable trust can be changed at any time in the grantor's lifetime.  If a relationship, circumstances or your intentions change then it is not an issue.  But while it does avoid probate, a revocable trust is subject to estate taxes.

An irrevocable trust is the opposite.  It immediately transfers your effects out of your estate and into a separate legal entity. There is no way to change your mind or use these assets because they are not yours anymore.  Benefits of an irrevocable trust is that it can avoid probate and estate taxes.

The other type of trust is called a testamentary trust.  These kind are specified in a will document and only created after the grantor has died. The funds can be subject to probate and estate taxes but can accomplish a variety of goals.

One example is a bypass or credit shelter trust which can protect your estate from taxation.  It allows the transfer of the most money allowed without being subject to taxation and then moves the rest to your spouse completely tax free, even if the estate grows.  Another example is a generation-skipping or dynasty trust.  It allows the transfer of a sizable amount of assets tax-free to beneficiaries that are at least two generations removed, such as grandchildren.

If you are interested in leaving the most assets to your heirs, then you should consider setting up a trust.  Contact an experienced estate planning attorney in DuPage County who can suggest the best trust for your given situation.