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Frequently Asked Questions

What is Probate?

Probate is the formal legal process through which a person’s assets is transferred after their death. The entire probate process is supervised by a court of law and is aimed to protect anyone who has a legal interest in a deceased person’s estate, including not only creditors but also heirs or legatees who may have been disinherited in a person’s will. From start to finish, the probate process usually takes anywhere from nine (9) to fourteen (14) months.

If a person died with a will, the person who represents the estate in probate court is called an executor. When a person dies without a will, assets are transferred pursuant to the intestacy laws and the estate is represented by an administrator. Under either scenario, the estate must be represented by an attorney in probate court. Click HERE to read more about that.

In Illinois, only those estates that exceed $100,000 in value must go through probate. Assets that are owned by estates valued at less than $100,000 can be transferred by the execution of a “Small Estate Affidavit.” Therefore, one goal of estate planning is to structure a person’s assets so that total assets owned in one’s name, individually, totals less than $100,000.

There are many ways to structure your estate so that the total value of property owned by you, individually, totals less than $100,000, such as putting assets in a trust. For more information about preparing an estate plan that avoids probate, thus saving your loved ones the time, expense and heartache that often goes along with it, click HERE.

I’ve been named as an executor in a will. What am I required to do?

Like most things in the law, it depends. Although you may have been nominated to be the executor of an estate in a person’s will, you cannot serve as an executor until the will is admitted to probate and you are appointed executor by the probate court.

When a person dies with will, the first step is always to obtain the original will and file it with the clerk of the circuit court where that person resided at the time of their death. Even if no probate estate is ultimately opened, all wills need to be filed with the court.

Small Estate Affidavit

Whether or not probate is required depends on the size and makeup of the deceased person’s estate. If the estate does not include real estate and is valued at less than $100,000, then the estate can likely be fully administered with what is called a small estate affidavit. By executing a small estate affidavit, you will be able to transfer any property owned by the deceased person – including bank accounts, stock certificates, and other property – to the heirs or beneficiaries of the estate.

Probate

If probate is required, then you will need to hire an attorney to represent you, as executor, in the probate court. (For more on that, click HERE). Once the will is admitted to probate and you are appointed executor, your job will be to gather all of the assets owned by the deceased, provide claim notices to all potential creditors, notify all of the deceased’s heirs that the will has been admitted, and otherwise represent the interests of the estate. This may include initiating lawsuits to pursue causes of action that the deceased may have brought during her life or defending against claims that a creditor may bring against the estate. (What is probate? Click HERE).

Once a will is admitted to probate and the requisite notices are provided, creditors will have six (6) months to bring any claims against the estate, and heirs or beneficiaries will have six (6) months to contest the validity of the will. If no claims are brought, then your job will be to pay all just debts owed by the estate and distribute the assets according to the terms of the will.

Fiduciary Duties

In carrying out your functions as executor, you will owe certain duties of confidence or trust – “fiduciary duties” – to the beneficiaries of the estate. These include a duty of care to manage the assets of the estate according to Illinois law and the wishes of the deceased person, as expressed in her will, with the highest degree of fidelity and good faith; a duty of impartiality to treat all beneficiaries equally, not favoring one over another; and a duty of loyalty, which requires you to act solely in the interest of the beneficiaries and not in your own personal interest.

Breach of Fiduciary Duty

If you fail to comply with these legal duties, you could open yourself up to being sued for breach of fiduciary duty. If such a suit is successful, you could ultimately be required to pay damages, including attorney’s fees, out of your own pocket. Therefore, it is important to retain an experienced attorney to guide you through the entire estate administration process.

Contact Us

Matthew Hess has years of estate administration and litigation experience and will help guide you through the estate administration process with efficiency and compassion. Contact Hess Law Firm today by telephone, email or by completing an online client intake form HERE.

How much do you charge for your estate planning services?

Many estate planning attorneys in Chicago and the surrounding suburbs charge an hourly rate for their services. This allows them to charge you for the time spent meeting with you, learning about your situation and drafting the various documents that will be included in your estate plan. At Hess Law Firm, LLC, you will be charged a reasonable flat fee for most estate planning services. This allows Mr. Hess to spend as much time as he needs conferring with you and getting to know you, your family and your particular situation without there being questions about whether certain work is necessary or simply aimed toward inflating a bill.

Can't I just prepare my own Will online or with a kit from a bookstore?

Yes, you are legally permitted to prepare your own Will. However, a Will, like all estate planning documents, must be drafted and executed in such a manner that it comports with Illinois law. Furthermore, depending on your situation, estate and gift tax consideration may render preparing just a Will inappropriate and inadvisable. A qualified attorney can evaluate your situation, discuss your goals with you and draft an estate plan that you can be sure complies with the law and achieves what you want. Furthermore, if you retain Hess Law Firm to prepare your estate plan, you will be kept up to date on changes in the law so that you can determine whether you need to update your estate plan.

Does having a Will avoid the probate process?

No. Wills must be filed with the court and admitted to probate, but having a Will streamlines the administration of your estate and reduces costs significantly. A Will drafted by a competent attorney can help you avoid certain costs, such as the cost of a surety bond which normally must be purchased by law. A Will also enables your loved ones to avoid unnecessary delays and carry out the terms of your Will in an efficient manner with little supervision by the court.

What if I don't have a Will when I die?

Then Illinois law will dictate who takes possession of your assets and who manages your estate through a lengthy and expensive process. Additionally, if you have minor children, a judge will appoint a guardian for them.

Can I make changes to my Will after it has been executed?

Generally, yes, you may modify your Will at any time by executing a document called a "Codicil," or you can completely revoke your Will by executing a subsequent Will. You should consider making revisions to your estate plan every five to seven years, or immediately following any major life event, including marriage, divorce or death of a loved one.

Should I consider a Trust?

Yes, a Trust can be of great benefit to most individuals and families for a variety of reasons. Even with a Will, the probate process may last several months, or sometimes over a year to complete. By placing your assets into a Trust, you may be able to completely avoid the intervention of the probate courts. Furthermore, by placing your assets into a Trust, you may be able to keep your assets, and the disposition of those assets, private. When you die, a Will needs to be filed with the court, thereby becoming a public record.

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