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, whether you are working on your own will or have been named a beneficiary in a loved one’s will, contact experienced probate attorney, Susan A. Marks.
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.
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 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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