According to several recent studies, more than half of Americans never prepare a will. So, you are not alone. The law in Illinois has a system for dealing with the estate of a person who dies without a will. It is called the law of intestate estates. It may not be perfect, but it is predictable.
Who gets what?
People often think that if you die without a will, the money will “go to the state.” This is usually not true. Instead, the state law sets rules for who will receive the property of the person who died. For example, if a person dies with a spouse and children, ½ of the estate is given to the children and ½ is given to the spouse. If a person dies with a spouse and no children, then 100% goes to the spouse. Of course, there are some a few other details that can change these results. The Illinois intestacy statute provides the rules for a number of contingencies. You can see the statute by clicking here. The only time that the money goes to the state is if there are no living relatives.
Do I Need to Go to Probate Court?
One of the problems with dying without a will is that the estate must go through the probate court process. Probate is generally required if a person dies owning real estate or total assets over $100,000 in their individual name. For example, if Dad owned a house in his name alone, probate would usually be required. However, there are other assets that pass to another person without going through probate. For example, a joint checking account usually passes directly to the joint owner. A house held in joint tenancy might also pass directly to the joint owner. An experienced probate attorney can quickly help you determine if probate is necessary. At Stotis & Baird, we provide free consultations to discuss these issues.
What is probate?
Probate is a court process to sort out the property of people who have died. If there is no will, a family member will usually volunteer to act as the “administrator” of the estate. That person will be appointed by the court to be the official representative of the estate. The administrator’s job is to gather the assets of the estate, pay any debts and then distribute money that is left to the heirs. The administrator almost always hires a lawyer to help them complete this job. The probate process can take 11 – 24 months to complete. You can read a more complete description of the process by clicking here.
What will probate cost?
The legal fees and administration costs vary a great deal, depending upon the circumstances. Most lawyers charge hourly for this type of work. If the estate is simple, a good lawyer can handle it quite efficiently. If it is complex, it can certainly increase in cost. Check out our article “What does probate cost” for some realistic thoughts about the costs of probate.
Can I access any money immediately to pay for expenses?
You may have heard that the money is “locked up” while the case is in probate court. There are restrictions but there are also ways to pay for essentials. Your lawyer can help you answer this question more specifically. For example, you may be able to access funds in a joint account that is not part of the probate estate. There might be a life insurance policy that pays out to a specific person, outside of probate. Even if all of the money is part of the probate estate, there can be ways to withdraw a portion of it to pay certain expenses. Before you get too worried, talk to a lawyer about your options.
Do I have come to your offices to handle this?
No. Our office is in downtown Chicago because it is near the courts and offices that we need to visit to handle your estate. That helps us to be efficient when we work on your behalf. But we want to make it easy for you, so we are happy to meet with you on the phone, or in your area. We also represent family members who live out of state but had a relative who died while living in Northern Illinois.
Please feel free to give us a call to discuss your situation. Initial consultations are free.
Eric Parker is a partner in the Chicago law firm of Stotis & Baird Chartered. Eric and the other attorneys at S&B handle estate, probate, guardianship and elder law matters in the Chicagoland area. Eric routinely works with local and out-of-state relatives to process estates for people who lived in Chicago and the surrounding communities of Park Ridge, Evanston, Lincolnwood, Arlington Heights, Wilmette, Glenview, Skokie, Des Plaines and others. You can read more about Eric’s experience here.