Probate Myth Number 1: If I have A Will, My Estate Won’t Go Through Probate….
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!