Decendent's Estate

It is often necessary that the property and financial affairs of a deceased person be supervised through a court process. This may be because the deceased person, the "decedent," planned for that to occur, or it may be the result of a failure to use certain legal devices to avoid the necessity of probate.

Testate Estates
If one dies with a written and properly executed Will in existence, his estate is known as a "testate" estate. This means that there exists a clear statement by the individual concerning how he or she wishes property and financial affairs to pass or be handled. This statement of the decedent's intent is commonly known as that person's "Will." Under Illinois law, it is required that any person who possesses the Will of a decedent file it with the Clerk of the Circuit Court of the county in which that individual resided within 30 days after the death of the testator is known to him. If a person intentionally hides the Will for thirty days or longer after learning of the decedent's death, or if he alters or destroys a Will, he is subject to criminal prosecution on a charge of theft.

Executor of an Estate
Following the filing of the Will, any person may file a written petition asking the Court to admit the Will to probate, to name an "executor" of the estate, to determine the heirs of the decedent, and to formally open the probate estate. A person who is named in a Will as an executor is required to file that petition within 30 days of learning of such nomination. Failure to do so may result in forfeiture to that appointment.

An "executor" is the individual who is listed in the Will as the person whom the decedent wishes to administer property and debts to assure that the Will, or intent, of the decedent be fulfilled. Generally, this means that the executor is required to gather all the necessary assets, documents, and bills to assure that all debts are paid and that the remaining properties go to those persons specifically listed in the decedent's Will.

Heirs of an Estate
The Court must first determine who are the heirs of the decedent. The executor is then required to notify the heirs in writing of the admission of the Will and the opening of the estate. The executor immediately must publish a written notice in a newspaper within the county of the Probate Court to notify potential creditors of the existence of the estate and the necessity for their filing of written claims against the estate. The law in Illinois provides such creditors six months to file those claims.

The executor is required to protect or preserve the assets, to pay any valid claims, and eventually to distribute the remainder of the estate to those individuals specifically listed in the Will. Because this process can be time-consuming, the law generally requires that the executor file written accounts with the Court on an annual basis. The purpose of these accounts is to advise the Court, and the heirs, of the particular financial receipts and disbursements while the estate is being administered.

Once claims are paid or determined to be non-existent, applicable taxes are paid, and any specific gifts under the Will ("legacies") are delivered, the balance of the decedent's property can be delivered according to the individual's intent. Those who receive the property can then be sure that there are no other competing claims against the claim.

Interested Persons
Certain individuals, known as "interested persons," have the right to contest the validity of a Will. An "Interested person" is someone with a direct financial interest which is affected by the probate of the Will. Usually, that person is an heir, or beneficiary under a prior Will, who receives nothing or a smaller distribution under the current Will.

Will Contest
The purpose of filing a "Will Contest" is to determine whether the Will really expresses the intent of the decedent. Under the law, a Petition to Contest the Will must be filed within 6 months of the date when the Court admits the Will to probate. The parties are entitled to have the case heard by a jury, rather than solely by a judge.

The issues in a Will Contest generally involve the mental competence of the decedent to execute the Will, whether the decedent was forced to execute the Will under duress or the undue influence of others, and whether the Will was executed and witnessed as the law requires. If the party who files the contest prevails, the Will is set aside. The estate is then probated according to the terms of the next most recently executed Will or, if no such Will exists, according to the statutory procedures which are described in the following paragraphs.

Intestate Estates

If one dies without a Will, he or she dies "Intestate." Since, there is no Will to file, there is no individual specifically identified as an executor. Nonetheless, the procedure is quite similar to that in a testate proceeding. An interested person, usually a family member, files a petition with. the Probate Court asking that an "administrator" be appointed, that the Court determine the heirs, and that an estate be opened. Notice of the presentation of that petition and the hearing must be given in writing to close relatives. The law dictates that family members have a preference in being named the administrator. Once an administrator is appointed, and the heirship is determined, the estate proceeds in a manner quite similar to that of one who dies with a Will. The administrator gathers the property and assets, determines the debts, publishes a notice for claims, and handles all aspects of property in the estate.

There being no written document directing how the property of the decedent is to be divided the law provides specific rules concerning which relatives get what proportion of the estate. Generally, these rules result in the closest family members receiving the greater portion of one's property. Unlike the situation of one dying with a Will, in which the individual determines specifically who receives what property, in an intestate estate the distribution of property is determined by a rigid formula.

In both testate and intestate proceedings, the law provides that surviving spouses and dependent children be provided with immediate awards of money so they can support themselves during the several months after an individual's death. These awards are independent of any specific provision that may appear in a Will.

Advantages & Disadvantages of Probate of an Estate
The advantages of the probate of an estate are that the claims of creditors can be determined with finality and the rights of relatives and others to property of the decedent can be recognized and fulfilled. Disadvantages include the costs of hiring an attorney, court filing fees, and newspaper publication of claims for creditors. In addition, a typical probate estate is open for more than a year before all assets are distributed.