Kendall County Probate 101

Kendall County Probate 101 is a summary of Probate court in Kendall County, Illinois.  Gateville Law Firm are Kendall County Probate Attorneys serving Yorkville, Oswego, Sandwich, Montgomery, Joliet, Plainfield, Minooka, and Bristol among other places in Kendall County, Illinois.  The Probate process in Kendall County is a complex and difficult system to navigate for the experienced person or family.  Attorney Sean Robertson is an experienced Kendall County Probate Attorney who resides in Yorkville, Illinois.

Kendall County Probate 101


Kendall County Probate

Probate in Illinois is a type of court process which many people have never heard of or know little about until they have experienced the death of a loved one. Many view Probate as expensive and time consuming, however, this is a common misconception.

The Probate process is complicated, though, and it’s important to understand what documents you need and the value of your loved one’s assets to ensure the necessary documents are filed accurately. It is a good idea to speak with an attorney to any answer questions you may have and to make this process easier for you.

Attorney Sean Robertson and Gateville Law Firm are experienced in this area and can assist you throughout your Probate proceedings.

What is Probate?

According to the American Bar Association, Probate is the formal legal process that recognizes a will and appoints the personal representative, the executor, to distribute assets, and the estate to the intended beneficiaries. Probate aims to clarify who will inherit a loved one’s estate and assets while ensuring valid debts and taxes are paid.

This process is handled by the executor who must:

  • Prove in court that a deceased person’s will is valid
  • Take inventory of their loved one’s assets and have them appraised.

In certain circumstances, an expert may be needed to:

  • Identify and appraise certain assets
  • Divide the property and assets as directed by the will to the appropriate beneficiaries.

If there is not a documented will, the designation of assets will be directed by Illinois Inheritance Laws.


When Probate is Necessary

Generally, in Illinois, probate is required if the amount of probate assets value more than $100,000. It will also be necessary if the deceased person owned assets solely rather than jointly.  Probate assets are pieces of property which will be directed to the appropriate beneficiaries assigned in the will. If there is no will, the property will fall under the Illinois rules of intestate succession (the standard process for dividing property among heirs).

In Illinois, Probate is usually required if:

  • The total estate and assets exceed $100,000
  • Assets involve real estate
  • When “letters of office” are issued (an executor has already been designated by the Probate court)
  • The family of the deceased believes there may be a will dispute


When Probate can be Avoided

If the total of the estate and probate assets amount to less than $100,000, the estate may be eligible for a Small Estate Affidavit which can be settled through Illinois small estate proceedings. The affidavit contains a summary of the deceased person’s estate and the appropriate designation of assets which then must be notarized. The Small Estate Affidavit can be utilized in place of Probate court to distribute property and assets.

Assets that are excluded in small estate affidavits are:

  • Assets held in a trust
  • Assets owned in joint tenancy or tenancy by the entirety
  • Assets already directed to another beneficiary
  • Property that has a transfer on death designation

In order to avoid Probate, the assets must also not contain real estate. Real estate in Illinois is often held in trust or is titled in joint tenancy or tenancy by the entirety. According to Illinois law, most estates involving real estate must go through Probate court due to their addition of a transfer on death regulation. 

In summary, generally a person may be able to avoid Probate if:

  • The total value of assets amounts to less than $100,000
  • No “letters of office” have been issued (an executor has not been designated by the court)
  • The Probate assets do not include real estate
  • There are no will contests or other beneficiary disputes

The Probate Process in Kendall County

What to Expect

The executor, if there is a documented will, should properly file the necessary forms with the 23rd Judicial Circuit otherwise known as the Circuit Clerk of Kendall County. The executor will then need to begin the Probate process by filing a petition with the local Probate court. The estate will then be opened, and the will can be probated.  If there is no will, the representative can file a petition to administer the estate by Illinois Intestacy laws.

After the petition has been filed, the local Probate court will establish the validity of the will and interpret its instructions.  If there is not a will, the Probate court will oversee the designation of the property according to Illinois Succession laws and will also formally assign a representative to carry out the proceedings.  Once an executor has been assigned and the will has been verified, all beneficiaries and known creditors will be notified of the Probate proceedings.

The representative must make sure that the necessary people have been notified and must publish a “claims publication” in a local newspaper that unknown creditors have the ability to file claims against for six months from the publication date.  The representative must then take inventory of the deceased person’s assets and configure his or her debts. Collecting the necessary assets and paying off debt usually takes a few months to complete.

If the six-month claims period has finished, the representative can file a petition with the Probate court to close the estate.

Required Documents

According to the Circuit Clerk of Kendall County, the following forms are necessary to open or file a new Probate case for a deceased individual:

 With a Will

  • New Case Probate Information Sheet
  • Petition for Admission of Will and Summary Administration
  • You must file the original will with the Clerk of the Court

Without a Will

  • Petition for Letters of Administration
  • Affidavit of Heirship – No Surviving Spouse or Descendant
  • Affidavit of Heirship – Surviving Spouse or Descendant
  • Oath of Representative
  • Surety Bond
  • Bond Sureties Waived
  • Order Admitting Will to Probate and Appointing Representative
  • Order Appointing Administrator
  • Order Declaring Heirship

There may be other forms or documents needed during your Probate case proceedings. Contact Attorney Sean Robertson and Gateville Law Firm to discuss which documents you may need to file.


The Benefits of Probate

Shorter Claims Period

Settling an estate through Probate court shortens the period that creditors can file claims against the estate. Creditors have six months from the executor’s publication to publish a claim to be considered. If you choose not to go through Probate court, claims can be filed for up to two years.

Less Liability

If you choose to file a Small Estate Affidavit yourself, you will be personally liable if you distribute the estate and assets incorrectly or make a mistake on a claim. Settling an estate through Probate with an attorney can take the stress off you with no liability risk.


Probate Court Handles Claims Disputes

Unlike Small Estate Affidavits, families can dispute a claim with creditors. The Affidavit also does not restrict others, whether that be creditors or additional family members, from filing opposing affidavits or petitioning to open a probate estate. Probate designates a specific representative to handle Probate proceedings.

Disputes Will be Settled by a Judge

Opposed to Small Estate Affidavits, estate disputes and will contests will be decided by a judge. In Kendall County, there is only one judge who hears all Probate proceedings. Probate cases are heard on certain weekdays at 9:00 AM in Courtroom 116 at the Kendall County Courthouse in Yorkville.

In conclusion, Gateville Law Firm are your experienced real estate attorneys for probate in Yorkville, Plainfield, Aurora, Joliet, Newark, Bristol, and Oswego, Kendall County, Illinois. Gateville Law Firm is comprised of experienced attorneys and professionals servicing your legal needs.  Gateville Law Firm may be reached at 630-553-3138 or via online contact form.

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