Discussing Your Legal Needs

What happens when your mom or dad or other loved ones die? A better question might even be what “should” happen? Once the death of a loved one happens, the “probate process” starts. Your first obligation is to locate the Will, if it exists, and file it. In Illinois, it is a crime to fail to file the will if you know where it is.

The next thing to do is determine what assets your loved one has and how to transfer them. This is the essence of the probate process. Depending on the details of the assets, and how they are held, sometimes the transfer can be done without the probate court’s involvement — as with a trust instrument or a small estate affidavit.

However, often the court will need to be involved and a probate estate will have to be opened. This involves filing a petition with the court, asking the court to appoint a personal representative to represent the estate of the decedent. The personal representative will have to file an “Oath and Bond”, swearing to represent the estate faithfully. Along with that petition and oath, you need to file a “Affidavit of Heirship,” stating who the heirs are. Then the court issues the personal representative “letters of office,” which allow him to operate on behalf of the estate. Third parties can rely on these “letters,” and release assets without liability.

The point of these procedures is to prevent the difficulties that could otherwise crop up: a mad scramble for the decedent’s assets, the problems of having no one in charge to collect assets and pay debts or taxes and make distributions, obtaining assets from third-parties, like banks or brokerages, keeping everyone on the same page, etc.

The Estate Planning Process

  • Filing a petition with the probate court
  • Distributing assets
  • Final personal tax return
  • Preparing an inventory of estate assets
  • Petitioning the court to appoint an Executor or Administrator
  • Selling estate assets
  • Estate tax return and fiduciary return
  • Publishing required notices
  • Sending required notices to heirs, legatees and creditors
  • Determining which creditors should be paid