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When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed according to the terms set out in the deceased persons’ Last Will and Testament (“Will”). If the assets of the deceased were owned through a well-drafted and properly funded living trust, it is likely that no court-managed administration will be necessary, although the successor trustee still needs to distribute the deceased's assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate, as well as the local rules and schedule of the probate court, but probate normally takes a minimum of six months and frequently takes between 9 months and 2 years to complete.
The probate process for each estate is unique, but usually involves the following steps:
An objection to a Will, also known as a “Will contest” can occur during the probate proceedings and can be very costly and time consuming to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children receive disproportionate shares under the Will, or when the distribution provisions change between a prior Will and a subsequent Will and someone wants to challenge the validity of the subsequent Will. In addition to disputes over the Estate property distributions, Will contests can be filed to challenge the identity of the person designated to serve as Executor.
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are “non-probate assets” and do not go through probate. These include:
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate. In addition, the Executor may be entitled to reasonable compensation, which can vary based on a number of different factors such as the location of the probate and the size of the estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise on the responsibilities and duties of the Executor.
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a valid Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds. These can add up to 5 or 10 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.
Schening & Dopke Law, LLC is located in South Elgin, IL and serves clients throughout Kane, DuPage, DeKalb and Cook Counties and the surrounding areas.
