Probate Attorney in Arlington Heights, IL
Estate Settlement is simply the legal process by which property of a deceased person is transferred to that person’s heirs or beneficiaries. The Law Office of Robert Thomas concentrates on the intricacies of probate matters and serves the estate of the deceased and its family with the utmost respect and sensitivity. Please call Robert Thomas today for a free consultation that is supportive and understanding.
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What Is “Probate” Probate is the court supervised judicial process by which the Last Will and Testament of the deceased person is authenticated and accepted as a true and valid public document by the court. The property of the deceased is then distributed according to the instructions of the Will. During the probate proceedings a court case will be opened dealing specifically with:
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as the personal representative to collect the assets, pay the debts, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can remain in court for a period in excess of six (6) months, and sometimes longer if there are disputes.
Probate Definitions
Determining If You Need to Go to Probate Court You may or may not need to go through probate court to obtain title to property belonging to a deceased loved one. Determining whether you must go to probate court depends on many issues, such as the amount of money involved, the type of property involved, and who is claiming the property. In addition, deciding if probate court is needed may also depend on the how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example: Type of Title Ownership: Sometimes all or some of a deceased person’s property passes directly to the beneficiaries because of how the property is owned. So whether the property was owned in joint tenancy, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor and probate in not necessary. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property. Type of Contract: Sometimes all or some of a deceased person’s property does not need to go through probate to pass to the beneficiaries because of the type of contract with named beneficiaries. Examples of this are life insurance policies that pay benefits to someone else other than the deceased person’s estate, retirement benefits, death benefits, and trusts. Last Will and Testament (also called a will) A Will is a written and legally executed document by the testator (deceased person) who wants his or her directions known and implemented regarding the distribution of his or her real property and personal assets after death (This is sometimes called “Estate Settlement”). While the testator is alive, the Will has no power or authority. (See our Estate Planning page for more information on Wills.) The Personal Representative One of the rights of the testator of a Will is to appoint and name a mentally competent adult person or entity as the Personal Representative or Executor to carry out the instructions of the deceased and to do what is necessary to settle the deceased’s probate estate. If there in no one named in the will who is able or willing to act as the personal representative, then the court will appoint a representative. Death Without a Will If the deceased person has not left a valid Will, they are declared to have died “Intestate” and thus they have failed to designate a personal representative. In this circumstance, the probate court in which the decedent domiciled (lived) will assign an Administrator. In most cases the spouse or adult children are named the Administrator. Transferring Non-Probate Property In some circumstances, property can be non-probate property. This means that the property is held either as “tenants by the entireties” or “joint tenants with right of survivorship” and can be transferred to the surviving tenant by filing a certified copy of the death certificate with the clerk of the circuit court. This can also apply to the transfer of title and registration of an automobile. . (See our Estate Planning page for more information on non-probate property.) Trust and Trustees (see our Estate Planning page for more information on Trusts) A Living Trust is a trust established by the decedent (grantor) during his or her life-time and provides for the disposition, or distribution, of the trust assets after his or her death. Assets in a trust will be handled by the stated trustee in the governing document of the trust. The trustee of the trust may be a different entity and may have different duties than the Personal Representative named in the Will. Assets held in trust are non-probate assets. Executor’s Fiduciary Duties The personal representative of the estate, the executor of the will, or trustee of the trust has a fiduciary duty to carry out the wishes of the decedent. In a fiduciary relationship, the administrator, executor, or trustee owes certain duties and responsibilities to the decedent. While acting as executor, administrator or trustee, these administrators are subject to various laws, regulations, standards and guidelines including (but not limited to):
Significant executor fiduciary duties are to:
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