FREQUENTLY ASKED QUESTIONS
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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.
How and where can I get a copy of a will that has been probated?
In most juridictions a will is filed with the Circuit Court Clerk's Office and a copy can be obtained by requesting it and paying a small copying fee.
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.
Is there a fixed rate or % of the estate charged as attorney fees for handling an estate?
No, attorney fees in probate are not by percentage, but are hourly, as fixed by the court.
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.
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.
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.
PAUL P. DIDZEREKIS
ATTORNEY AT LAW
610 W. ROOSEVELT RD.
WHEATON, IL 60187
Contested Matters in Probate
A great source of information regarding this area of law is the IICLE Handbook entitled "Estates, Trusts, Guardianship Litigation", also found in Smart Books.
The course materials also contain copies of the forms for Citations to Discover and Citations to Recover.
There are essentially three areas of litigation in probate: Claims, Citations and Will Contests. The ones you will run into most frequently are Claims and Citations. Claim forms are easily obtained from any Circuit Court Clerk's office.
Claims (Section 5/18-1 through 15) can be the garden variety of collection matters or they can be Statutory Custodial Claims (Sec 5/18-1.1), Spousal Award (Sec 5/15-1)or Child Award Claims (Sec 5/15-2). In a claim situation a party believes that the estate owes them some money and the estate wants the court to determine whether that is true and, if so, what the amount is. Claims must be filed within six months of newspaper publication or 2 years from the date of death if there has been a failure of publication. Either side is entitled to a jury trial (Sec. 5/18-6). As with any demand for a jury trial, you must request it at the first opportunity. Claims are broken down into Seven categories of preference. See Section 5/18-11 for the details and priority of these claims..
Citations (Sections 5/16-1 through 5/16-3) are broken down into two types: Citations to Discover and Citations to Recover. A Citation to Discover is where an estate or an interested party wants to find out if someone is holding property or information that belongs to the estate of a decedent. A Citation to Recover is where it has been determined that someone owes money to the decedent or holds property belonging to the decedent and action must be taken to bring that property into the estate. A Citation is served in the same manner as a summons in a civil case and must be served 10 days before its return date. If the personal representative is not the respondent or issuer of the Citation, then he or she must be given mail notice at least 5 days before the return date. A Citation can be enforced by a judgment or contempt and the costs of the Citation can be assessed against the respondent. Where the estate hold property belonging to a third party, the third party can bring a petition for recovery against the estate. In either case a Jury trial can be had in limited circumstances (See Section 5/16-3).
Lawyers frequently join the two types of Citations into one Petition ( a Petition to Discover and to Recover) thinking that it will be more economical or judicially conservative to do them both at once. This generally is a mistake.
The burden of proof for a Citation to Recover is greater than that required for a Citation to Discover and therefore harder to obtain. The best practice is to go ahead with the Citation to Discover first and then, after you have obtained proof that the money or asset belonging to the decedent is indeed in the hands of the third party, to go after it with the Citation to Recover.
Because there is not a specific statute of limitation for Citations, the statute of limitations on a Citation to Discover, which is really in the nature of discovery, is limited by the Statute of Limitations on a Citation to Recover, which would be either the six months claim period against the estate or the two year after death period where publication has not been made
The third type of litigation that involves an estate is the one we most often think of when we think of estates and litigation - THE WILL CONTEST.
What makes a will valid?
In order for a will to be valid a person of sound mind and memory over 18 years of age can execute a will (Sec 5/4-1 Capacity of Testator) and
"Every will shall be in writing, signed by the testator or by some persons in his presence and by his direction and attested in the presence of the testator b 2 or more credible witnesses." (Sec 5/4-3 Signing and Attestation)
The process of admitting a will to probate is two pronged in Illinois and is referred to as the "double contest system".
First there is the prima facie admission to probate and the formal proof of will and then secondly there is the actual will contest.
To admit the will to probate the Court must find:
The attesting witnesses have testified that they were present and saw the testator, or some person in the testator's presence and at the testator's direction, sign the will in the presence of the witnesses or acknowledge his or her signature to the witnesses; and that the witnesses believed the testator to be of sound mind and memory at the time the will was signed.
To put the requirements simply: "Everyone was in the same room at the same time and everyone saw everyone else sign and the witnesses thought the testator was competent."
This establishes a prima facie case which can be rebutted.
If you believe it is unlikely that there will be a will contest, then obtain waivers or consents from the heirs and legatees in advance as provided in Sec 5/6-10 (b).
If you believe there may be a will contest, then ex parte file the petition to admit the will (under Sec 5/6-2) without notice to anyone (see Sec 5/6-4 Admission of Will to Probate - Testimony or affidavit of witnesses).
Then in either case, on the return date of the Sec. 5/6-2 Petition, if you establish a prima facie case, the Will will be admitted to probate.
Under Section 5/6-4 of the Probate Act there are only 3 methods of proving that the requirements of a validly executed will have been met:
- 1) An Attestation Clause
- 2) An Affidavit of Witnesses
- 3) The Testimony of the Witnesses
The simplest and most common method of proving a will is by an attestation clause. It is also invaluable in preventing a witness from changing his or her story, can discredit a witness who does change his or her story and can help a forgetful witness recollect the events surrounding the execution of the will.
The Affidavit, like the attestation clause, recites the requirements for a valid will execution as required by Sec 5/6-4 and can be signed after the will has been executed and attached to a copy of the will, but Illinois law still requires that the witness had signed the will as a witness in the presence of the testator.
You can also bring the witnesses into court to testify in person or have them do so by deposition.
After you have established your prima facie case and the will has been admitted, then you can send out the Notice of Rights (to require a formal proof of will or to file a will contest) to all the legatees and heirs within 14 days of the admission of the will to probate.
Then those wishing formal proof of the will have 42 days to request the same by filing a petition pursuant to Sec 5/6-21 "Formal Proof of Will."
If formal proof of the will is demanded under Sec 5/6-21, then you will have to actually bring in the witnesses for a hearing of their testimony or their depositions or other competent evidence that can establish the document as the will of the testator. The attestation clause or the affidavit will not suffice to establish the will on their own.
For a will to be denied probate the proponent must fail to present a prima facie case. If the prima facie case is made, then the admission can only be denied if there is proof of fraud, forgery, compulsion or other improper conduct.
Fraud - This is not undue influence or interference with an expectancy. It is something like tricking someone into signing a document that they believe is something other than a will.
Forgery - Proof by a handwriting expert that the signature on the alleged will is not that of the alleged testator or circumstances establishing that the alleged testator could not or did not sign the alleged will, such as he was out of town when the alleged will was allegedly signed.
Compulsion or other improper conduct - admittedly ambiguous, but it is not undue influence.
Sound Mind and Memory - What the witnesses believed at the time, not the actual state of mind of the testator, which is left for a full blown will contest to determine under Sec 5/8-1.
The court has the discretion to limit or prohibit any discovery. When the only issue is the proponent's prima facie case, there is essentially no discovery permitted. The contestant will probably be denied the right to take the depositions of the witnesses to the will.
The proponent of the will can introduce any evidence competent to establish the will in addition to the testimony of the witnesses. The contestant is essentially limited to cross examining the witnesses to the will and may not introduce any evidence, except that which may prove fraud, forgery or compulsion, but a preliminary showing of the same must be made first.
THE WILL CONTEST:
The only procedural requirements the statutes place on a will contest are that it be filed by an "interested person" as defined the Probate Act Definitions at Section 5/1-2.11. This definition essentially makes and "interested person" anyone having a financial interest, property right, or fiducially status in the proceedings.
The only procedural requirements placed upon a will contest by statute is that it be filed by an "interested person", which term is defined in the definitions section of the Probate Act Section 1-2.11, which means essentially any person with a financial interest, property right, or fiduciary status in the proceeding and that it be timely filed in the court where the will was admitted to Probate. Any contestant or proponent is entitled to a jury, demand for which must be made at the first opportunity, as with any jury demand.
Probate Act Section 8-1, the will contest statute, requires that "an issue be made whether or not the instrument produced is the will of the testator"
As already mentioned, the formal proof of will establishes that the document is a will. The double contest determines whether the will is that of the testator. Where a will contest is successful, the finding or final order or judgment is that the document is not the will of the decedent, with subsequent provisions in the order or judgment stating how the property is to pass. In Illinois, when execution formalities are missing or there has been fraud, duress, or forgery found, that the document that has been offered, is refused probate and is not actually a will. The nature of a will contest, assumes as a matter of law, that the document before the court is a will. The greatest difference between a formal proof of will and a will contest is that a will invalidated at a formal proof of will removes the named executor's ability to act with respect to the decedent's property, from defending the will at a will contest and to seek to be paid for so doing. Only after a successful will contest does the contestant get to manage the property of the estate and get compensated for doing so. The only practical effect of prevailing in a will contest is to receive the property remaining at that stage of administration, after the defendant's expenses and attorney fees have been paid and then take control of the remaining probate administration.
The Probate Act requires only that the representative and any heir, legatee, fiduciary or other person whose property rights would be impacted by the contest receive a copy of the petition to contest the will, by mail or delivery, at the address in the most recent petition to admit the will on file with the Probate Court (See Probate Act Section8-1 (b).
Service is to be made by the Petitioner.
The six months time to file a will contest is jurisdictional. The court loses jurisdiction to hear a will contest once the six months has run without a petition being filed.
Those "interested persons" who have standing to file a will contest do not include the beneficiaries of a pour over will trust, only the trustee. (See Section 1-2.11)
It is the statutory duty of the executor to defend the will contest (See Section 8-1 of the Probate Act). He and his counsel also have the right to be paid for doing so. Likewise, the successful proponent of a will contest and his or her counsel has the right to be paid from the estate. See Estate of Pfoertner, 298 Ill. App. 3d 1134 espousing the so called "common fund" theory that the successful will contest proponent has created, preserved or increased the value of the fund.
The only exception to the duty of the executor to defend is where he believes that it is a lost cause and gets court permission to not defend.
The two main grounds for a will contest are:
1 - the testator lacked mental capacity to make a will and
2 - the testator was unduly influenced in the making of the will, which is the most common ground and really a kind of fraud. It is where the mind of the testator was so overwhelmed by the will of someone else that the will is really not that of the testator. It should be remembered that there is a sliding scale here - the weaker the mind of the testator, the less the undue influence has to be.
A fiduciary relationship between the testator and someone else can become the basis of a presumption of undue influence. The fiduciary relationship can be something as simple as husband/wife son or daughter/father or attorney/client or the existence of a power of attorney. The presumption must be overcome by clear and convincing evidence.
Another ground for attacking a will is that of Interference with an Expectancy, which is a tort and which must be pled within 2 years (not 6 months) of the death of the decedent.
A good place to start, whether advancing a will contests or defending one, is with the Illinois Pattern Jury Instructions 200.01 through 200.114 and regarding tortuous interference with an expectancy see IPI 205.02 through .05. The instructions contain all the elements that will have to be proved to establish your case or destroy some else's.
The evidence you will need to establish a successful will contest will depend upon the mental capacity of the testator, the medical and hospital records, lay persons opinions, the testimony of the attesting witnesses to the will or a transcript of those proceedings, expert opinions, the state of mind of the decedent, lay persons observations, letters and personal correspondence, photographs, and the character and habits of the decedent.
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: