Kendall County Probate - The Basics of Probate Court

 Posted on March 01, 2023 in Estate Planning

Kendall County Probate Lawyer: Basics of Probate in Yorkville and Kendall County

Probate Court is used to handle a person's estate upon their death. It is recommended that an individual create a comprehensive estate plan with a Trust included to minimize the possibility of going through Probate. While a Will can be used to name intended beneficiaries, it will not avoid the Probate process. Probate can be time-consuming and expensive, so it is essential to find an attorney well-versed in the field. At Piece of Mind Asset Protection, LLC, the attorneys and staff have the knowledge and experience to handle your Probate matter effectively and efficiently, saving you time and money.

What is Probate?

Probate is the process of opening an estate for the deceased person (decedent). The point of Probate is to ensure that the assets held by the decedent are distributed to the persons named in the Will or to the next of kin. In addition, the process is also used to ensure that any debts held by the decedent get paid.

If a person dies without a Will (intestate) or with a Will (testate), Probate will be used to handle the estate distribution. When a person dies intestate, the estate will be distributed according to Illinois Intestacy Statutes, which find the closest living blood relative to inherit the estate. It is common for a person to intestate, but it is never recommended because you then have no control over who will receive the assets of your estate.

If a person dies with a valid Will, then the distribution designations of the Will prevail over intestacy statutes. However, it is vital to remember that any contractual beneficiary designations will trump the Will designations. This means that if an individual dies with life insurance and lists one person as the beneficiary but names a different person to inherit under the Will, the former beneficiary will receive the inheritance, not the person named in the Will.

How do I Start the Probate Process?

Two documents are required to begin probating an estate, a Petition and an Affidavit of Heirship. The Affidavit of Heirship is an affidavit made by the affiant, who states the familial relationship of the decedent and who the legal heirs are. It also indicates whether a Will was created or not. Attached to the Affidavit will be a copy of the death certificate and a copy of the obituary if one was made. In addition, a Petition will be filed with the Court. The petition will be filled out by the individual seeking to be named administrator. It will contain basic information about the decedent, such as date of death, residency at death, and approximate estate value. These items will be electronically filed with the Kendall County Circuit Clerk, and a court date will be given to the Petitioner. The Petitioner must then notify all potential heirs of the court date. If there was a Will, it must be filed with the Circuit Clerk and made a public record.

The administrator has another duty of obtaining a Surety Bond, which is issued at one and one-half times the amount of real estate within the decedent's estate. The Surety Bond ensures that the administrator fulfills their duty and distributes the estate as necessary. If the decedent died with a Will, then the administrator may be able to forego the Surety Bond requirement.

What Happens at the First Court Date?

At the first court date, the Judge will review the documents and ensure that the proposed administrator has the capacity and the capability to handle the estate. If the potential heirs are present, they may step before the Judge and indicate if they feel the proposed administrator should not be granted the role. If no individuals come forward, the administration will be presented, and the administrator will be issued Letters of Office, a document giving the administrator the right to handle the estate.

Next Steps Following Appointment as Administrator

It is typical to have an unsupervised administration, which is when the administrator can distribute the estate with minimal court supervision. Once the administrator receives the Letters of Office, they must file a notice of publication in the local newspaper for three weeks to give notice to potential creditors. Once publication occurs, the creditors have six months to file a claim against the estate. In addition, the administrator must file an inventory with the Court. An inventory documents personal and real property items within the estate and their approximate value. Things to be included in an inventory are real estate properties, bank accounts, vehicles, etc.

Once the inventory is filed, the administrator can begin distributing the estate according to the Will or intestacy statutes. This can include closing out bank accounts and issuing the funds to the heirs or selling/re-titling real estate to issue to the intended heirs. In conjunction with distributing the assets, the administrator must pay any taxes and debts under the estate.

Once the debts are paid off, and the assets are properly distributed, the administrator will file a motion with the Court to close the estate. Specific closing procedures must occur, including a final inventory and completing a receipt upon distribution form. Once the Court sees that the estate has been successfully distributed, it will be closed.

Probate Attorneys in Kendall County

Going through Probate can be difficult and expensive if the proper procedures are not followed. The attorneys at Peace of Mind Asset Protection, LLC can confidently assist in handling the estate and navigating through the difficulties of Probate Court. We represent clients in the Kendall County area, including Yorkville, Oswego, Plano, and Montgomery. If you would like to inquire more about our services or would like to schedule a consultation to discuss your circumstances, call our office at 630-882-2467.