Probate & Estate Administration

Probate & Estate Administration

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.  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 will normally take 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:

  • Filing of a Petition with the proper probate court to open a probate estate and to appoint an Executor (if there was a valid will) or an Administrator (if there was no will).
  • Applying for and purchasing a performance bond (sometimes referred to as a “surety”) for the Administrator, if there was no will stating that bond is waived.
  • Sending various notices to heirs under the will or to statutory heirs (if no will exists), as well as publishing notice in the newspaper.
  • Preparing an inventory and appraisal of estate assets by the Executor or Administrator.
  • Paying debts owed by the estate to rightful creditors.
  • Selling estate assets.
  • Preparing a final tax return and paying estate taxes, if applicable.
  • Making final distribution of assets to heirs.
  • Preparing and filing documents with the court to close the estate once all legally-required steps have been completed.


What happens if someone objects to the will?
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 are to 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 tangible distributions, will contests can be filed to challenge the identity of the person designated to serve as Executor.

Does probate administer all property of the deceased person?
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:

  • Property in which the deceased held title as a “joint tenant with right of survivorship.”  Such property passes to the co-owner(s) by operation of law and does not go through probate.
  • Retirement accounts (such as IRAs) and other financial accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations 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.

Do I get paid for serving as an Executor?
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.

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 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.

Law Office of Judith A. Schening, LLC is located in South Elgin, IL and serves clients throughout Kane, DuPage, DeKalb and Cook Counties and the surrounding areas.

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