Probate – Estate Administration
Q: What is probate?
A: Probate is the Court that oversees the administration of a decedent’s estate.
Q: If I have a Will, do I still have to go through probate?
A: Yes, if your estate has real estate or has assets over $100,000.
Q: What does an executor have to do with a Will?
A: The executor must file the original Will with the Clerk of Court where the decedent resided in the State of Illinois within 30 days of death.
Q: If I am named in my deceased mom’s Power of Attorney, can I handle her affairs?
A: The Power of Attorney terminates at death. You will need to be appointed by a Court.
Q: Once the executor files the Will, can the executor then administer the estate?
A: No. The executor has to be appointed by the Court in a proceeding.
Q: What happens if someone dies without a Will?
A: The Illinois Probate Act will determine distribution to the heirs.
Q: If I pass away without a Will, will everything just go to my spouse?
A: Under the IL Probate Act, 50% of your estate goes to your surviving spouse and 50% of your estate goes to your children (even if they are minors).
Q: If I have a Trust, will my estate go through probate?
A: If everything is properly titled into the Trust, then no.
Q: How long does this process take?
A: Simple, uncontested estates typically take approximately 1 year to administer.
Q: Am I responsible for my deceased relative’s debts?
A: No, you are not personally responsible. All debts should be paid by priority out of the Estate. Claimants have 6 months from the time they receive notice that the Estate has been opened to make their claim. There is a 2-year bar on claimants from the date of death.
Q: How are claimants given notice?
A: We are required to mail notice to all known creditors within 14 days of the appointment of the administrator or executor. We are also required to publish notice to all unknown creditors.
Q: Can I avoid probate and use a small estate affidavit?
A: Yes, if the decedent died with no real estate and less than $100,000 in assets.
Q: If the decedent died with real estate worth less than $100,000, can I use a small estate affidavit?
Q: Where can I read the Probate Act?
A: Here is a link to 755 ILCS 5.
Guardianship for Disabled Adults
Q: What is adult guardianship?
A: Guardianship over a disabled adult means you are appointed by the Court to manage the disabled person’s affairs.
Q: What’s the difference between guardianship over a person and guardianship over the estate?
A: Guardianship over the person means you would be responsible for healthcare decisions and making sure your loved one is being properly cared for day to day either at home or in an assisted living facility. Guardianship over the estate means you are responsible for taking care of your loved one’s financial affairs.
Q: Can I obtain guardianship over the person and estate?
A: Yes, if the Court appoints you.
Q: What is the process?
A: First, you need to have the disabled adult’s doctor fill out a physician’s report (a court form) and sign it stating that the doctor believes the adult is unable to manage his or her own affairs. Next, we file a petition and have the Cook County Sheriff serve the alleged disabled adult with the court papers and send notice to other close relatives. The Court may appoint a Guardian Ad Litem to interview the alleged disabled person and family members and make a report to the Judge. There is then a hearing where the Court will determine if the alleged disabled person is adjudicated disabled and whether the person petitioning to become a guardian is qualified.
Q: What is a guardian ad litem?
A: A guardian ad litem is a person (typically an attorney, but not required to be) who acts as the Court’s eyes and ears. The GAL will visit the allegedly disabled person, read him or her a statement of rights, interview family members, and then draft a report. The GAL will then present the report to the Court at the hearing to appoint a guardian. The Court relies heavily on the GAL report when making its decision.
Q: After being appointed guardian of the estate, will I have to continue coming to court?
A: You will be required to submit an inventory to the Court within 60 days. You will then need to present an annual accounting each year. If you have an unusual expenditure, need to sell property, need to move the disabled person, or some other decision, you will have to ask the Court’s permission before doing so.
Q: Do I have to have an attorney?
A: If you are only seeking guardianship of the person, it is possible to do it on your own. Many people do find it challenging to figure out all of the steps involved, but it is possible. If you are seeking guardianship over the estate, you will be required to have an attorney.
Q: Why do I have to obtain a surety bond if I am appointed guardian of the estate?
A: A surety bond is required under the Probate Act when someone is managing someone else’s money. It is similar to an insurance policy in the event you steal the money, it ensures the disabled person that the bond company will reimburse them.
Q: How much is a surety bond?
A: The cost of a surety bond depends on the amount of assets in the estate not including real estate. The assets are then multiplied by 1.5 and that determines the bond amount. The higher the assets, the higher cost of the bond. The premium then must be paid annually.
Q: What is the difference between guardianship and a power of attorney?
A: Guardianship is a court proceeding where you are appointed by a Court and issued a document called Letters of Office. A Power of Attorney is a private document that signs appointing an individual to act as their agent.
Q: Do I have to pay for everything?
A: If you are obtaining guardianship over the disabled adult’s estate, your attorney can ask that the attorney’s fees and costs be paid by the estate. The court will review the attorney’s fees and determine if they are reasonable. If you the disabled adult does not have the financial resources to pay, then you may be required to pay.
A: The Court oversees minor’s funds in excess of $10,000 to ensure the money will be there for when the minor turns 18. The Court’s role is to protect the child’s funds.
Q: What is the difference between guardianship over the person and the estate?
A: Guardianship over the person means you are responsible for making healthcare decisions and ensuring the minor is being take care of day to day. Guardianship over the estate means you are responsible for making sure the minor’s funds are being kept safe for the benefit of the minor when he or she turns 18.
Q: Do I have to attend court?
A: Yes, you will need to be present for the hearing as you will be required to take an oath.
Q: Does the child have to attend court?
A: If he or she is 14 or older, they will be required to attend for the hearing.
Q: Will I get to use the minor’s money to pay for things that benefit the minor?
A: Only if you petition the court and the court allows it. If there are no extreme circumstances, the Court will usually require the guardian to place the funds in a restricted account that will be left untouched until the child turns 18 years old or the Court enters an order to distribute funds.
Q: Do I have to pay to get guardianship over the estate of my child?
A: Typically, the attorneys fees and costs can be paid out of the child’s funds. The attorney can file a petition with the court and ask for a reasonable fee. The Judge will review the attorney’s hourly rate, time spent, and total fees and determine if they are reasonable before allowing the money to be disbursed.
Q: Do I have to have an attorney?
A: You do not have to have an attorney to obtain guardianship over the person only, but you will be required to get an attorney to obtain guardianship over the estate.
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