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Probate

Does probate administer all property of the deceased?

Do I get paid for serving as an Executor?

How much does probate cost? How long does it take?

What happens if someone objects to the Will?





Q: Does probate administer all property of the deceased?

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 what is called “non-probate assets” do not go through probate.  These include:

 

  • Joint tenancy 'with right of survivorship' property.  This property passes to the co-owners and do not go through probate unless the co-owner is also deceased.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies with designated beneficiaries.
  • Bank accounts with “pay on death” (POD) beneficiaries named or “in trust for” designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.


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Q: Do I get paid for serving as an Executor?

Executors appointed by the court are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate.  In addition, you are entitled to compensation for your own work as Executor, most often on an hourly basis.  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.  Those fiduciary duties include proper filing of any tax returns required for the deceased, the estate, and/or the trust.  It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.


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Q: How much does probate cost? How long does it take?

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 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 2% to 7% of the total estate value, although such costs are not in fact based on the size of the estate in most Illinois probates. Most estates are settled though probate in about one to two years, assuming there is no litigation involved.


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Q: What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest,” is sometimes raised during the probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.


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Our attorneys assist families in Plainfield, IL and the surrounding areas, including Joliet, Naperville, Aurora, Bolingbrook, Channahon, Crest Hill, Lockport, Minooka, Oswego, Romeoville, Shorewood, and Yorkville, in Will County, DuPage County, Kendall County, and Kane County.



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