Think again. By definition, “probate” is the legal process of proving and administering a Will in court. The administration process includes settling all claims against the deceased person (the “Decedent”) and distributing the Decedent’s property as provided in his/her Will.
Probate vs. Joint Assets vs. Beneficiary Designations
A Will only disposes of assets that were titled in the Decedent’s name at the time of death (referred to as “probate assets” or “probate estate”). Assets that have a surviving joint owner on title or are payable to someone by way of a beneficiary designation are not probate assets. If a Decedent’s probate assets total more than $100,000 in value, or if the Decedent owned any real estate in his/her name alone at death, then probate will likely be necessary to transfer such assets to the beneficiaries named in the Will.
Will (“Testate”) vs. No Will (“Intestate”)
Having a Will is definitely better than not having a Will, as it makes the probate process much smoother and, usually, less expensive. When someone had a valid Will at the time of their death, they are said to have died “testate”. The provisions of the Will will govern how the Decedent’s probate assets are distributed and who is in control of the administration process. On the other hand, if the Decedent did not have a Will, then he/she would have died “intestate” and his/her probate estate would pass according to Illinois statute. The statutory distributions to the Decedent’s heirs may be, and often are, very different from what the Decedent would have wanted to happen to his/her estate after death.
Thus, at minimum, you should have a valid Will which designates: (1) who will be the Executor, and waives the requirement that the Executor purchase a surety bond, (2) who will receive your probate assets, and in what percentages, including any holdback or trust provisions for some or all of your beneficiaries, and (3) who will act as guardians of your minor children (if you have any at the time of your death). You can also include specific instructions for burial or cremation in your Will.
In order for your Will to be recognized and followed by the Illinois probate court, it must be executed with the formalities required by Illinois statute. If these requirements are not met, or if there are important provisions missing from your Will, then the terms of your Will will not be enforceable by your intended beneficiaries.
If you don’t have a Will, or if you do have a Will and want to be sure that it is valid and covers all of your wishes, please call our at (847) 253-8800 or contact us online office to schedule a no-charge initial consultation with one of our experienced estate planning attorneys. We would be happy to discuss your concerns and goals with you, as well as review any documents that you already have, to help you determine what steps are necessary to provide for your family following your death.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.
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