Probate FAQ

PROBATE FREQUENTLY ASKED QUESTIONS

What is Probate?

Probate is a term which represents the court proceedings necessary when someone dies owning assets in excess of one hundred thousand dollars ($100,000.00). There are two ways to open a Probate Estate, (1) Testate, in which the deceased leaves a duly executed Last Will and Testament; and (2) Intestate, in which the deceased does not leave a will, and the deceased assets will pass to heirs through Illinois' law of descent and distribution statute.

Can Probate be avoided?

Yes. If the deceased passed away leaving a Will that "pours over" into a Living Trust, there is likelihood that the trust will handle the administration of the estate, rather than the Court administration. Please see our section on Estate Planning for more details.

The probate process also may not be needed if the deceased assets fall under $100,000.00, whereby a small estate affidavit may be used instead. It is important to note that, if the deceased had debts in excess of their assets, a probate estate may be needed to flush out the creditors and settle all the debts of the estate before any distributions can be made. An attorney should be contacted to discuss this situation.

How long does the Probate Process take?

Typically the probate process takes nine to twelve months, however, this can be extended if the estate encounters unforeseen difficulties (i.e. disagreement among heir/legatees, a large number of claims being filed or the need to file an Estate Tax Return). Once the attorney opens the probate estate, the estate, through its attorney, must file a notice to be published in a local newspaper and that must be published for three consecutive weeks. The claims period will remain open until six months after the first date of publication. During those six months, Kuhn, Heap & Monson will help the executor collect assets, pay debts and determine if an Estate Tax return will be needed. After the conclusion of the claims period and before the estate is closed, the Executor will need to prepare an accounting to distribute among the Estate heirs and/or legatees. Kuhn, Heap and Monson will prepare the accounting for the Executor to review and approve.

Do I need an attorney to handle the probate estate?

Yes. Kuhn, Heap & Monson strongly recommends that the executor hire a law firm to assist in the Estate Administration. A law office should prepare the documents to open and close the estate, and help in preparing the accounting, among other things. Here at Kuhn, Heap & Monson we pride ourselves in being able to assist the executor with every step of Estate Administration.

GUARDIANSHIP FREQUENTLY ASKED QUESTIONS

What is Guardianship?

Guardianship is for a disabled person as defined by Illinois Statute as follows: "A "disabled person" means a person eighteen years or older who has become (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with a mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering." 755 ILCS 5/11a-2.


How do I know if a loved one needs a Guardianship Estate?

If someone you know suffers from a developmental disability, or has recently been deemed incompetent by a doctor to make personal or financial decisions, this is a good time to see an attorney to discuss guardianship options.

However, in Illinois, there is a Statutory Power of Attorney for Healthcare and Property. If your loved one has completed such documents, while competent to do so, then Guardianship may not be necessary, because the alleged disabled adult has previously designated someone to act in their best interests regarding medical and financial decisions.

Could a loved one sign a Power of Attorney instead?

Yes. At Kuhn, Heap & Monson we will assist you in determining whether or not your loved one is able to sign legal documents. If they are able to make medical and financial decisions, we will prepare the Illinois Statutory Power of Attorney for Healthcare and Property.