Illinois probate process basics for after death Published July 13, 2016 By Maj. Dan C. McIntosh 375th Legal Office SCOTT AIR FORCE BASE, Ill. -- A frequent concern expressed by legal assistance clients seeking a will or other estate documents is if their property will enter the probate process after their death. Family members commonly express anxiety over how difficult it can be to distribute the assets of a loved one after their death. Each state has its own estate planning laws which may or may not be different from Illinois. This article will highlight the probate process in Illinois and hopefully dispel its stigma or common misconceptions. After an individual dies, the process by which their property is distributed to their potential heirs is formally known as the probate process. Probate must be accomplished for the estate of the deceased whether or not they have a will, and the process will be different for both. Almost all property will be subject to probate except assets held in a trust, retirement account, other accounts where a beneficiary was named payable-on-death, or shared real property such as a house owned between spouses. If an individual dies with a will and the total value of their estate is less than $100,000 and does not contain any real estate, then no formal probate court proceeding is necessary. Rather, the heirs can utilize a Small Estate Affidavit to claim the inheritance. Often a template affidavit can be found in a section of your county’s circuit court dedicated to probate matters, typically called the “Probate Division” or “Probate Court.” If an individual dies with a will and has a larger estate, the executor named in the will is responsible to file the case for probate. The executor presents the will to the Probate Court which can approve the will and give the executor authority over the deceased’s assets. The executor’s duty is to distribute the assets of the estate to pay out any debts or outstanding taxes of the deceased and to collect, inventory, and distribute the assets to the beneficiaries listed in the will. The distribution of assets may be accomplished with or without court supervision. If an individual dies without a will, any person with an interest in the estate may file a formal petition to the Probate Court to begin probating the estate. The Probate Court will name a qualified individual (commonly son or daughter) as “Administrator” or “Special Representative” to administer the will. The duties of the special representative are similar to those of an executor. Lastly, a notice of the filing should be sent to any relatives and potential heirs and an official notice should be published in a local newspaper to alert creditors that may wish to recover on the deceased’s debts. The majority of probate cases involve only administrative paperwork and can be accomplished without legal representation. However, relatives, potential heirs, or creditors may contest the distribution of assets. Individuals may even contest the validity of the will itself, claiming it was signed under duress or coercion. A judge must adjudicate all these disputes which can result in contentious litigation, significant time delays, and large attorney fees or court costs. Probating an estate can lead to bitterness between family members that lasts long after the court process is completed, which is why this process often has a negative reputation. Although the probate process is often unavoidable, the stigma and difficulty in completing it can be avoided. One of the best ways to avoid complications with settling an estate is to create a will at your local legal office. A properly drafted and notarized will can best represent the intentions of the drafter for property distribution after their death. If you are a potential executor, representative, or beneficiary to a will, your local legal office can assist you in understanding your role in the process. Furthermore, there is always the option of retaining a local estate planning attorney for guidance.