By Rick Law, Estate Planning Attorney serving Aurora, Oswego, Montgomery, Naperville, and the surrounding suburbs. Once an estate is in probate, it becomes public.  All the documents in the probate file, including the assets in the estate and the names and addresses of the heirs are available to the public.  Anyone can go to the county courthouse office, check out the file and write down the information, or they will even make copies of anything in the file for you. Doesn’t this seem fraught with the danger of identity theft? A trust could be your hero to allow your assets to pass to your heirs in a private venue.   A trust is private and no probate has to be opened if the assets are properly titled in the trust. There’s another important reason that a trust may be for you.  Often in the case of second marriages, you want to leave your assets to your children and not to your second husband or wife.  Simply putting those instructions in your will may not work, because in Illinois your spouse has the right to renounce your will. For example, Bill has three children. After the death of his first wife, Bill remarries Mary. Bill keeps his assets titled in his name alone and does not add Mary to his accounts or to his home. Bill’s will divides his assets equally between his kids.  Bill is married to Mary for a year and then unexpectedly passes away. The children go to the attorney who prepared Bill’s will, and the attorney files the will and proceeds to probate Bill’s estate.  That’s when Mary realizes that she is getting nothing, so she hires an attorney and renounces Bill’s will. She doesn’t have to contest Bill’s will; she isn’t saying there is anything wrong with it; and she isn’t saying Bill wasn’t competent or that he was under any duress. She simply renounces Bill’s will under the rules of the Illinois Probate Act.  Then, Mary gets one-third of Bill’s estate and the children must split two-thirds of the estate. Bill needed a trust – and he needed to make sure his assets, including his home and all of his financial accounts, were titled in the name of the trust. If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 630-585-5200 or 800-310-3100. Your first consultation is absolutely free.  We’ll let you know what steps you need to take, right now, to protect yourself and your family.  Call now. Sincerely, Rick L. Law, Attorney, Estate Planner for Retirees. Rick was named the #1 Illinois elder law estate planning attorney for the past 3 years by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future.  Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.  Call 800-310-3100 for your free consultation now!

 By Rick Law, Estate Planning Attorney at Law Elder Law in Aurora, IL, right off the I-88 Tollway.

I am not sure how this urban legend came to be, but somehow most people think that if you have a will, your estate will not have to be probated.  However, this is not the case.  Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the assets of the deceased under a valid will.

There are actually two paths through probate: one traveled by an “executor” and another traveled by an “administrator.”

If you have no will and you die owning assets in your name alone that exceed $100,000, your estate will go through probate on the “administrator path.”  Because you did not leave instructions for what to do with your assets after your death, the court will appoint someone to handle the distribution. This person will actually petition the court to be appointed as the administrator of your estate, and then they will pay your bills and divide up your stuff in accordance with the laws of descent and distribution (your closest relatives, or “heirs-at-law”).

The administrator will have to post a bond and depending on the nature of your estate, it could be administered “supervised” or “unsupervised.” Both methods require reporting to the court and keeping accurate records, but most are “unsupervised.” However, in some cases, more stringent court supervision is imposed (but there’s no need to get into that right now).

However, if you die with those same assets and you have a will, your estate will still go through probate – except that the court will appoint an executor instead of an administrator. Even if you have named an executor in your will, that person does not have any power until the court appoints him or her as executor. The executor will then follow the instructions you left in your will regarding who gets what. If your will includes the standard language that your executor may serve without the necessity of a bond, that cost can be avoided (unlike the administrator path).

Probate is a very public venue. In Illinois, if person dies with a will, the will must be filed within 30 days of death at the courthouse in the county that the person lived at the time of death.  If the assets exceed $100,000 then the probate estate must be opened and the executor (or administrator if there is no will) petitions the court to be appointed and Letters of Office are issued by the court. Next, the executor (probably with the assistance of counsel) must file an inventory of all the assets listing financial institutions, account numbers and balances, and a list of all the heirs and legatees (other people or entities listed in the will who will inherit) with their names, addresses and other information.  And, there is a requirement that the probate proceeding be published in a local newspaper for one day per week for three consecutive weeks.

It’s also important to note that wills can be renounced by a spouse, and wills can be contested.   No wonder many people decide that a simple will-based estate plan is not for them!  If you are ready to get your ducks in a row, give our office a call at 630-585-5200 or  800-310-3100 for your free initial consultation.

Sincerely, Rick L. Law, Attorney, Estate Planner for Retirees. Rick was named the #1 Illinois elder law estate planning attorney for the past 3 years by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future.  Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.   Call 800-310-3100 for your free consultation now!