When you provide for your loved ones by making out a will, it’s important to remember that they may not receive many of the things you want them to have until the will goes through probate. What is probate? It is the process of legally proving the validity of a will. A special probate court exists to review and approve wills. The directions left in the will cannot be carried out until the will is probated.
The person who made out the will is the testator. Those who benefit from the will are the devisees. The person named by the testator to carry out the will’s instructions is the executor. The estate consists of the money, property and other assets left by the testator.
The Probate Process
The executor should bring the testator’s death certificate, original will and any old wills to probate court. Other important items may include the testator’s check register, tax returns, credit card and utility bills, retirement policies, the deed to the home, car title, stocks, bonds and any other information that determines the testator’s assets and debts. The estate does not include personal items or furniture.
An estate lawyer can explain what is and is not included in an estate. The lawyer can also help the executor create and submit to the court a petition to admit the will to probate.
The devisees should sign an affidavit. The will may contain a self-proving clause, a simple statement the witnesses sign in addition to their signatures on the will itself. The clause allows the will to be accepted in probate court without the witnesses having to sign anything further or show up in court.
Probate begins by identifying the testator’s creditors and making sure that they are notified of the testator’s passing. Creditors have only a few months to file claims against the estate. Funeral expenses are also paid out of the estate. The items in the estate are inventoried and the total value calculated. Under Illinois law, if the estate total is under $50,000 the will is approved automatically. The probate process concludes with the court appointing the executor to act in accordance with the provisions of the will.
What is probate exemption?
Certain assets are not subject to the probate process. To ensure the devisees have something to live on while the will is probated, the testator can set aside money in a CD or other bank account and mark it “pay on death.” All the heir has to do is show up at the bank with the death certificate. Life insurance is also exempt. It passes directly to the beneficiary.
If the testator owns real estate or bank accounts in joint tenancy with someone else, the tenants can claim that property immediately.
What If There Is No Will?
If the deceased left no will, he or she died intestate. The procedure for intestate estates usually involves the court identifying the nearest relatives and dividing the assets among them. Often, the surviving spouse receives half of the estate with the rest being divided among the surviving children.