FREQUENTLY ASKED QUESTIONS
What do I do if I can't find an answer to my questions below?
Click on the "Contact Us" button on this web site and write us or send an e-mail with your question to Paul Didzerekis at paul@paul-didzerekis.com or at PaulDidzerekis@LeadingLawyers.com. Tell us if you want to be contacted by e-mail, snail mail or phone, giving us your e-mail address, phone number or snail mail address. We will get back to you as promptly as possible.
Do I need to write a will?
Not everyone needs a will. If you are not married, have no children and have less than $1,000,000. in assets you may not need a will and can transfer your assets at death with joint tenancies or trust bank accounts. But, if you have a spouse and children, then you most likely need a will. Take a look at your statutory will if you live in Illinois by clicking here.
I don’t live in Illinois, but a relative of mine died in Illinois and they have no other relatives in Illinois to handle the estate. Do I need to hire two lawyers – one to act as administrator and one to do the legal and court work?
No! If you have a case where your decedent died in Illinois and you live out of Illinois you can retain an attorney to handle the estate and also act as administrator. If there is a will and named you or someone who cannot act as executor, you or someone with the authority to appoint an administrator can name someone else to act as administrator with will annexed. You do not need two individuals or two attorneys to handle an estate. Some unscrupulous individuals may tell you that you need two attorneys – one to act as administrator and one to handle the legal work. This is not true.
Can I probate a deceased relative’s estate without a lawyer?
Generally, one should seek a lawyer’s advice with respect to any matter that has to be in court. Only the simplest estate will not need some advice and representation by a lawyer.
Estates of less than $100,000 can be handled with very little paperwork and no court involvement. Any estate of more than $100,000 or where there are contentious relatives probably needs a lawyer’s assistance. This doesn’t mean that the lawyer has to do everything. If you are very accustomed to working with financial and accounting matters and keep good records you can probably do most of the work yourself and rely on the lawyer to just do the court documents and appearances.
What is Probate?
Probate is the legal and court process by which the property of a dead or deceased person (the decedent) is transferred to either his heirs or persons to whom he or she wanted to give the property. To begin to probate an estate one files a petition with the Clerk of Court and sets the matter for hearing before a judge. Estates of decedents, disabled adults and minors begin with a petition. In Illinois, decedent estates of more than $100,000 probably need to be probated. Probate of a decedent's estate in Illinois takes at least 6 months because the law gives creditors that period of time to file their claims against the estate of a decedent.
If my mother/father left a will, do I need to probate her/his estate?
If you were named executor, then it is your duty to probate her/his estate, if the amount of her/his estate personal estate exceeds $100,000, unless you can settle the estate with the other heirs and the creditors without opening a probate estate. However, if there is real estate, then you will probably be better off opening a probate estate so that you can give clear title to that property to a buyer.
My mother/father didn't have a will, do I need to probate her/his estate?
The estate would only have to be probated if the personal estate exceeded $100,000 and maybe if there was real estate owned by your deceased relative. Sometimes one can avoid probating an estate with real estate in it by posting a bond with the title insurance company instead of opening a probate estate, but this still leaves open the question of debts of the decedentd, which can be collected from the assets of an estate for as long as two years after death. Probate shortens that claim period to 6 months.
My parents owned real estate in another state. Can a probate in the state that they lived in handle the out of state real estate?
Ordinarily real estate has to be probated in the state where the real estate is located.
What are Letters of Office or Letters Testamentary? The bank asked me to give them my letters.
"Letters of office" are the piece of paper that issues from the probate court to the executor or administrator of an estate, which are the proof of the executor's or administrator's authority to act on behalf of the estate. When the executor or administrator closes a bank account or sells stock of a decedent the bank or stock company will require a certified copy of the letters of office to prove that the executor or administrator is the one in authority to close the bank account or sell the stock.
What is a "certified" copy?
A certified copy of any court document, including letters of office, is one that has the court seal impressed on it and is signed by the Clerk of Court or a Deputy Clerk.
A relative/friend of mine died and I am named as executor in their will. I have their will. What do I do with it?
Illinois law requires that anyone who is is possession of the will of a deceased person (otherwise called "decedent") must file the will with the Clerk of the Circuit Court where the deceased person lived within 30 days of death. There are financial penalties for not doing so. Also, it is a felony to hide the will of a decedent.
Unanswered Question?
If you cannot find the answer to a question that you have from the above, you can e-mail your question to us. Contact us.
What is a Public Administrator? The answer is here.
My spouse died and used various passwords to access his computer and bank accounts, etc. He didn't give me this information before he died and we cannot find it anywhere. How do I access this information?
Unfortunately, too many people don't write this information down and place it in a safe place accessible to their family members after their death. Sometimes computers, etc. can be accessed by breaking the code, but it takes an expert to do this, which can be expensive. Also, sometimes people encryt information and unecrypting can be impossible. The best practice is to leave a copy of all your passwords and encrytation keys with your will and save your family or executor this problem. A new service at http://www.mylastemail.com/ provides one with the ability to leave an e-mail message that can be accessed after someone's demise. There is a charge for this service. Visit the site for more information.
I have a handicapped child and I would like to provide that my estate funds are available to take care of my child over and above what public aid or the government will provide. Is there any way I can do this?
Yes, you probably can set up, as part of your estate plan, a "special needs trust", the assets and income from which can and will only be used for the benefit of your child after all public aid or government support is exhausted. See your estate planning attorney to discuss this possibility.
I wrote a will years ago. Do I need to change it or review it with my attorney and how often do I need to do this?
You should check with your attorney regarding updating whenever there is a significant change in your assets or family situation, such as a marriage, divorce, birth of a child or grandchild. Also, take a look at who you appointed as executor or trustee. With all the bank mergers that have happened, the bank and people that you trusted to handle your estate may no longer be around and a whole new set of people may be in line to handle your estate. Do you know who they are or how well they will do the job? Also, federal estate and state inheritance tax laws are changing and what was good tax planning last year may not be today.
My mother died and her lawyer, who has her will, hasn't call me for a "reading of her will". Shouldn't the lawyer do this?
No matter what you saw in that movie on television, there really isn't a "reading of the will". After a person's death their will is filed with the Clerk of the Court and a copy of the will is mailed or given to everyone who is entitled to receive one, which is generally all those mentioned in the will as getting something and all the heirs of the decedent.
WHAT NOTICES HAVE TO BE GIVEN TO OPEN AN ESTATE AND DURING PROBATE?
PURPOSE OF NOTICE:
1) Give the court or the representative jurisdiction or authority to perform an act.
2) Give the "interested persons" notice that they have rights.
3) Start time running and limit those rights. (Six month period for filing of claims by creditors and six months to contest admission or denial of a will, six months to file for spouse's or child's awards, six months for a statutory custodial claim, seven months for spouse to file a renunciation. 42 days to require formal proof of the will or to questions a final account.
Probate, being an in rem proceeding, the court obtains jurisdiction over the decedent's property when the estate is opened and the necessary interested persons are given the proper initial statutory notice. The Court needs no new and independent notice to vest it with jurisdiction to enter subsequent orders.
If you fail to give notice to an interested person, the probate totally fails as to that person. Hence, the provision of Section 5/6-11 regarding Omitted or unnotified heir or legatee.
As to unauthorized acts, (i.e. doing something that is not authorized by the will, a statute or court order) the representative is treated as an absolute insurer for any loss to the estate. That means, as the representative's attorney you are his absolute insurer, if you failed to give a required notice or gotten a waiver.
With Independent Administration - a representative can take just about any legal action without notice or a court order. Under supervised administration, he or she can only do those things authorized by the will, the probate act or approved by court order.
After the initial opening of the estate a court order is necessary in probate proceedings when either the will or a statute does not authorize an action, such as the sale of real estate, to be taken. When a court order is required, then notice of the motion or petition must be given to interested persons.
INTERESTED PERSONS
Who are "interested persons" See definitions in Probate Act Chapter 755 Ill Rev Stat. Section 5/1-2.11:
"Interested person" in relation to any particular action, power or proceeding under this Act means one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse's or child's award and the representative. Whenever any provision of this Act requires notice or accounting to or action by an interested person, including without limitation Sections 24-2 (Notice of Accounting) and 28-11 (Closing of Estate) of this Act, and a trustee of a trust is an interested person, no notice or accounting to or action by a beneficiary of a trust in his capacity as a beneficiary shall be required. When a ward would be an interested person but a personal fiduciary is acting for him pursuant to Section 28-3 (Protection of person under disability during independent administration), the personal fiduciary is the interested person instead of the ward, but any notice required to be given to the ward under this Act shall be given to both the personal fiduciary and the ward. This definition also applies to the following terms: "interested party", "person (or party) interested" and "person (or party) interested".
In Cook County, if the trustee and estate representative are the same person or persons, the notice must also be given to the trust beneficiary or beneficiaries. See Circuit Court Rule 12.13 re Probate Accounts, where you will find different permutations on who must be given notice and provides for at least 10 days notice of the hearing on a final account. In DuPage County Rule 18.05 prescribes at least 20 days notice.
DETERMINING WHO GETS NOTICE:
Read Section 5/2-2 Rules of Descent and Distribution.
Interview your client: Ask who the decedent's relatives are and who the creditors are and their last known addresses.
Read the will. If it mentions a trust, read the trust to find out who the trustee is.
Get a death certificate
Fill out the probate petition with the client
Do the Affidavit of Heirship with the client
Have the mail redirected. If possible, to your office.
Then you have made a diligent search for heirs, claimants and creditors, so that after you give notice and publish you will be protected against someone coming out of the woodwork and making a claim that should have been barred.
Known claimants and heirs get actual notice. Creditors should be sent a letter asking for proof of what they are owed, if it is unknown. Heirs get notice of the hearing on the Petition for Probate. Where there is a will, notice is given after the hearing, whether the will is admitted or denied probate. Where there is no will, 30 days notice is required before the hearing. Here is where waivers become helpful. Publication is for all others.
WAIVERS AND AGREED ORDERS
Three places for waivers - appearance and waiver on initial petition, on current and final accounts. The Receipt on Distribution Form, in connection with a Final Account, contains a waiver and an approval of attorney and representative fees. In all other cases, an agreed order serves the same purpose.
NOTICE IS DEEMED GIVEN UPON MAILING
STATUTES RELATING TO THE INITIAL NOTICE TO GIVE THE COURT JURISDICTION ARE:
Section 5/6-10 Notice on Petition to Admit Will to Probate or for Letters Testamentary -
(WHERE THERE IS A WILL) - Within 14 days of admission or denial of will to probate or appointing a representative. Also, Publication in newspaper as to unknown heirs and legatees. Can be combined with notice to creditors under Section 5/18-3.
Section 5/9-5 - Notice on Petition for Letters of Administration (NO WILL) -
30 days before hearing on Petition and within 14 days after letters issued. Also, publish in newspaper within 14 days for 3 consecutive weeks as to heirs whose names or addresses are unknown. Can be combined with notice to creditors under Section 5/18-3.
Section 5/6-11 Notice to omitted or unnotified heir or legatee (WILL).
Section 5/9-10 Notice to omitted or unnotified heir (NO WILL).
Section 5/6-20 (WILL) and Section 5/9-6 (NO WILL) Presumption of Death - Steve Fosset situation.
30 days notice to alleged decedent and people in possession or control of his or her property by mail, Newspaper publication for 3 successive weeks, first publication 30 days before hearing on petition.
PREPARED BY:
PAUL P. DIDZEREKIS
ATTORNEY AT LAW
610 W. ROOSEVELT RD.
WHEATON, IL 60187
630-653-7710
PAUL@PAUL-DIDZEREKIS.COM
http://www.probateillinois.com/
http://www.paul-didzerekis.com/
How can I provide for my pet or pets after my death?
See the following websites for good advice regarding this subject and pet trusts:
http://www.estateplanningforpets.org/
http://www.professorbeyer.com/Articles/Animals.htm
http://www.secondchancepets.org
http://www.Aspca.org/pettrust
http://www.hsus.org/petsinwills
