Testate and Intestate Estates

Testate and Intestate Estates

Probate Attorneys Providing Comprehensive Coverage of the Probate Process

Probate refers to the court process that takes place after the death of an individual. There are two general types of probate, intestate and testate. The type that is appropriate for a specific case depends on whether a will was left by the deceased.

For guidance with the probate process, contact experienced probate attorney, Susan A. Marks.

Testate Estates

A testate estate is created when the decedent dies with a will in place. The main focus of testate probate is to validate the will and commence the process of distributing assets under its direction. This includes the formal appointment of the executor, or person who manages distribution of the estate, as named in the will. In a testate matter, the executor is not required to purchase a surety bond.

To commence a case, a Petition for Probate of Will and for Letters Testamentary is filed in  Probate Court. Other required documents include an affidavit of heirship and a representative oath. At the first court appearance, the judge considers the will and determines whether or not it meets statutory requirements. He or she then officially begins the probate case and names the executor listed in the will.

Intestate Estates

For an intestate estate, which is an estate where the decedent died without a will in place, probate can prove more challenging. The court must choose and appoint an administrator. In addition, that person is required to purchase a surety bond. Asset division is carried out based on the Illinois laws of distribution.

To commence an intestate case, a Petition for Letters of Administration is filed with the court. The affidavit of heirship is also required in these cases. Once an administrator is chosen, he or she must file an oath along with proof of a surety bond. As with testate cases, the judge then officially opens the probate matter.

The Remaining Probate Process

  1. The representative must send out letters of office to notify third parties of the death and appointment of an administrator.
  2. The representative publishes a Notice of Probate in a newspaper and contacts all known creditors. This creates a time limit for parties to bring claims against the estate. Any business that does not bring a claim within six months is barred from bringing one in the future.
  3. The representative must notify all beneficiaries named in the will or, in an intestate case, anyone who might be entitled to receive a portion of the estate. This notification includes an explanation of rights including the right to demand formal proof of the will and the right to contest the will.
  4. The representative identifies and inventories all assets. Liquidation of the assets is done if applicable and necessary.
  5. All debts of the estate are paid and accounting statements are provided to all potential beneficiaries.
  6. The representative files an accounting with the court and distributes the remaining assets.

Is Probate Necessary in Your Case? Work with a Probate Attorney

The necessity of probate depends on a variety of factors, such as the value of the assets. For estates worth less than $100,000, a small estate affidavit may negate the need for probate. Additionally, assets titled in trust, as well as joint tenancies, are not subject to probate.

The probate process can prove challenging and somewhat confusing without the assistance of a knowledgeable probate attorney. The SAM LAW OFFICE, LLC can guide you through the process in Probate Court. Call today for a free consultation.


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