Learn Basics About Probate in Kendall County, Yorkville

 Posted on March 27, 2023 in Estate Planning

Yorkville Illinois Probate Attorney: Probate Primer in Kendall County, Illinois

Probate is the legal process, which happens after a person dies, and the family petitions the "probate court" to determine who is the appropriate beneficiary of one's inheritance upon their death. Probate can be an emotional process, especially when dealing with the end of a loved one and a complex court process. Probate distributes a person's assets upon their death according to their will or their following family members. The Probate court will also ensure the deceased person's debts are paid.

Unfortunately, many people are unaware that a last will must undergo a court process called "probate" to be effective. The last will be filed with the local courthouse where the person is deceased. People often need to be made aware that a last will must undergo probate court before a last will is effective and valid. Generally, a person names an executor in their will responsible for the court administration process. Alternative estate planning solutions can spare loved ones the hassle of dealing with probate court after one's passing. A Living Trust is an estate planning strategy that can assist people in avoiding the complexity of the court system. In addition, we have various articles on our blog that discuss varying estate planning strategies designed to avoid probate court.

This article will discuss the Probate Process in Yorkville and Kendall County, Illinois. The Court will distribute the deceased's assets if a person dies without a will. If you die without a will in Illinois, your estate will pass "intestate ."Intestate means that the state's intestacy laws will determine who shall inherit your assets and how your assets will be distributed, including real estate property, bank accounts, certificate of deposits, and life insurance proceeds.

Under Illinois intestacy laws, the deceased person's estate will pass to their family members eligible for an inheritance according to the Probate Act of 1975, 755 ILCS 5/Probate Act of 1975. Probate in Illinois is problematic if you are unmarried to your partner or significant other or step-children are involved. Family conflicts often arise when a person deceases, especially when real estate and other assets are involved. Under intestacy, unmarried partners and friends will have no legal basis or the right to one's assets upon death unless they have a will or other instrument that distributes assets to their unmarried partner.

Designated Beneficiaries: Non-Probate Transfers

Designated beneficiaries generally apply to assets that transfer through bank accounts, life insurance proceeds, and other assets where a person can designate a beneficiary. Typically, probate court occurs when there is no designated beneficiary or no way to transfer real estate to the next kin unless one creates an estate plan. Often, if probate is involved, a person fails to create an estate plan that provides a smooth and easy transfer upon death. As a result, several assets will pass outside the probate process, such as the following:

• Life Insurance Proceeds. Life insurance benefits will automatically transfer to the next kin unless the deceased person fails to designate a contingent beneficiary in case of death or disability of the primary beneficiary.

• 401(k) and Other Retirement Assets. Retirement assets generally will bypass the probate court process unless a beneficiary is deceased or unable to accept their inheritance, such as a disabled adult or minor child. The owner of the retirement account identifies a beneficiary upon their death. Often, decedents need to update their beneficiary designations.

• Payable On Death Accounts. Bank accounts are prime examples of payable-on-death accounts. Upon their death, a person instructs their bank to distribute their bank and savings accounts to a particular person or persons.

• Transfers To a Living Trust. Often, people create living trusts and need help transferring their assets to their trust. Trust and estate planning will only work if the trust holds legal title. Such transfers usually bypass the probate process if the living trust is adequately funded or a person’s assets are property transferred into their trust’s legal name. If a trust is improperly funded, the Pour Over Will governs their distribution in Court.

• Joint Property. Joint real estate owned by two or more persons held in joint tenancy or tenancy by the entirety will automatically transfer to the surviving co-owner. Therefore, the probate court will be avoided. However, assets held in joint names, such as tenants in common, will be subject to probate court.

How Do You Start the Probate Process in Yorkville and Kendall County?

To initiate the probate process, a Petition to Admit Will and Letters Testmary is used to probate a last will. The proposed administrator will file the Petition for Letters of Administration if an estate passes via intestate succession. Furthermore, an affidavit of heirship is required to detail the deceased person's family relationships and the eligible heirs. The Affidavit of Heirship is a statement by someone familiar with the familial relationship of the decedent and their legal heirs. The Affidavit of Heirship also indicates whether a will was created or not. Generally, the Affidavit of Heirship will include the obituary and a copy of the decedent's death certificate. 

Generally, a Petition is filled out by the individual seeking to be named the administrator or executor of the decedent. In the case of the Petition to Admit Will and Letters Testamentary, the person seeking appointment as the administrator will include basic facts such as the date of death, the residency and location at death, the approximate value of the estate, and a copy of the last will. The Petition for Letters of Administration slightly differs from the Petition to Admit Will and Letters Testamentary because the person seeking the appointment will utilize intestate succession and the Illinois Probate Act of 1975 to govern the distribution of the estate. Generally, the administrator must also obtain a Surety Bond, issued at 1.5 times the amount of real estate within the decedent's estate, to ensure that the executor or administrator fulfills their duties to the beneficiary and the Court. 

What Happens At The First Court Date?

At the first court date, the Judge will review the documents, and the proposed administrator or executor will be appointed as long as the proper paperwork is presented. The heirs and legatees also have a right to attend the court date and object to the appointment of the proposed executor or administrator. The proposed administrator must have the capacity and ability to handle the estate, and any heir or legatee may object to their appointment. The Court may appoint a guardian ad litem or give the person sufficient time to hire an attorney to protect their rights. The Judge will issue the executor or administrator Letters of Office if no objections are made. Letters of Office give that person the right to handle the estate. Independent administration will occur unless an heir or legatee objects. Independent administration means the administrator or executor can conduct business without court approval, such as selling real estate.

Once the executor or administrator appoints and receives the Letters of Office, they must file a notice of publication in the local newspaper for three weeks. The purpose of the notice of publication is to give potential creditors notice that they must file a claim against the estate within six months. The administrator or executor must also file an inventory documenting the personal and real estate within 60 days of the admission of the will or appointment. After the inventory is filed, the administrator or executor may distribute the assets to the appropriate persons after the debts are paid. The administrator or executor often waits before distributing assets to ensure the estate debts are paid. Generally, the administrator will wait at least six months and ensure the income tax returns are filled. After the assets are distributed, and the debts are paid, the administrator will file a motion to close the estate. Finally, the administrator must get the heirs and legatees to sign off that they receive their inheritance.

The Court will review the inventory and receipts of distribution signed by the heirs and legatees. Upon seeing that the decedent's estate has been successfully distributed, the estate will be closed. The Court will review the administrator's final report to ensure that the attorney's fees and creditors are adequately paid. 

Yorkville Probate Attorneys Serving Residents of Kendall County

In conclusion, Peace of Mind Asset Protection, LLC, a Gateville Law Firm division, specializes in estate planning and probate in nearby areas of Yorkville, Oswego, Plano, Newark, Bristol, Boulder Hill, and the nearby regions of Kendall County. The Probate Process can be expensive and complex, and expert legal counsel is necessary. The Attorneys of Peace of Mind Asset Protection, LLC can guide you through the probate process to create a smooth process upon a loved one's death. You may reach one of our probate attorneys at 630-881-1467 for a free initial consultation.