To Probate Or Not To Probate? When That’s The Question …

The death of a loved one, whether sudden or expected, is never easy. If you’re in charge of settling their affairs after they’re gone, this guide can help.
For starters, determine whether or not you need to open a Probate Estate.

What is Probate?
Probate is the legal process of settling the financial matters of a person who has died. This involves validating their Will if they had one, paying off their debts, and distributing their assets (bank accounts, real estate, investments, etc.) to their loved ones.

When is Probate Necessary?
Probate is not always required, even if your loved one had valuable assets and accounts at the time of their death. Determining whether a Probate is necessary ultimately comes down to how much they owned, and how each asset they owned was titled. In Illinois, when a person owns $100,000 or more of assets that are considered Probate Assets at the time of their death, a Probate case with the county court is required.

What is – and isn’t – a Probate Asset?
Probate Assets: Anything your loved one owned solely in their name, not in a Trust, and without a beneficiary or Pay On Death (POD) named, is considered a Probate Asset, and counts toward the $100,000 threshold.

Non-Probate Assets: Many accounts and other properties do not count toward the $100,000 threshold. These Non-Probate assets include:
• Any asset with a named beneficiary, such as an IRA, 401(k), or life insurance policy;
• Any account with a Pay On Death (POD) beneficiary assigned to it or, in the case of real estate, a Transfer On Death (TOD) beneficiary;
• Any asset owned jointly with another person; and
• Any asset owned in a Trust. When this is the case, your loved one’s assets will be distributed according to the terms of their Trust.

If, after you’ve done a basic inventory of all the assets your loved one owned at the time of their death, and those assets total $100,000+, a Probate will be required for their estate.

You’ll need to contact an Estate Planning and Probate attorney to open and manage the Probate estate with you.

If no Probate matter is required, an Estate Planning and Probate attorney can prepare a Small Estate Affidavit so that you can access and distribute the assets in your loved one’s name.

Where There’s a Will, There’s a Way …
If your loved one had a valid Will (Last Will and Testament) at the time of their death, you need to locate and then file it in the county where they lived. While this filing process varies a bit from county to county, it generally involves taking the original, hard copy of the Will, and a copy of the death certificate, to the County Clerk of Court. In Cook County this process is free.

Next, determine who your loved one appointed as the Executor of their Will. If it’s you, then you have the legal authority to either arrange for a Probate case to be opened in their name, or to collect their assets using a Small Estate Affidavit.

*Note: It’s important to locate the original, “wet-ink” version of the Will, as the court will, most always, only accept the original version for filing.

You will distribute, either through a Probate case or a Small Estate Affidavit, your loved one’s assets according to the terms of their Will. The people (or charities) named in the Will to inherit those assets are called beneficiaries.

No Will? There’s Still a Way …
If you’re not able to locate a valid Will (or Trust), Illinois law will determine who inherits your loved one’s assets. These people are called heirs. A person’s heirs depend on the family relationships they had at the time of their death.

For example:
• Spouse, but no children: 100% of the assets go to the surviving spouse.
• Children, but no spouse: 100% to be divided equally between the children.
• Spouse and children: 50% to the surviving spouse, 50% to be divided equally between the children.
• Neither spouse nor children: If either of the deceased’s parents is still living, 100% of the asset go to the parent or parents. If neither parent is living, 100% will be divided equally between the surviving siblings.
• This process can continue until a living relative is found, no matter how distant.

Settling the affairs of a loved one is a complicated and arduous task, especially as you’re grieving. If you’re feeling overwhelmed, reach out to Erwin Law’s Estate Planning Attorney Elea Nielsen at 773-525-0153. She has the knowledge you’ll need – and the compassion you’ll appreciate – as she guides and supports you through this difficult time.