Matthew S. Payne is a Chicago-based attorney with a 20-year record of success in civil litigation, real estate law and estate planning.

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Is probate always necessary?

| Feb 25, 2021 | Estate Planning

After a loved one passes away, heirs may soon find themselves in an Illinois probate court. Not every estate requires the probate process, so beneficiaries need to review the testator’s assets to determine if probate is necessary. An attorney may advise survivors if probate becomes necessary.

Wills and probate

Probate refers to the process in which the court opens the estate, and an executor takes over the duties of paying the deceased’s debts and distributing assets. When someone dies with a will, the assets end up distributed based on the testator’s wishes. The will may also establish other directives, such as naming a guardian for minor children.

If someone dies without a will, then Illinois’ intestacy rules come into effect. The probate court would oversee this process.

Even if someone has a will, probate may not be necessary if the estate’s assets pass outside of probate. Probate is not necessary with joint accounts or with real estate designated joint tenancy with rights of survivorship. Payments to beneficiaries on death would not require probate to process. For example, an individual retirement account could pass to a beneficiary without the need for probate.

Other things to consider

Even when many assets do not require probate to pass to someone else, anything that cannot do so must go through probate. A person may have named a beneficiary to brokerage and retirement accounts but owned a house solely in his or her name. The house would need to go through probate since there was no joint tenancy with rights of survivorship.

Also, not going through probate does not eliminate responsibilities to pay taxes and debts or close utility and bank accounts. Some entities may close accounts or perform actions when presented with a death certificate while others may ask for a letter of testamentary documentation.

An experienced attorney may answer questions about estate administration and probate related to a specific individual. Working with an attorney may help the surviving family members handle business related to the estate.