Taking Your Estate Through Probate Court

When a person dies, his or her property is often distributed through a legal
proceeding in the probate division of their local Circuit Court. Usually, this
happens in the county where the person died. Whether you have a will or not,
your survivors may find it necessary to go through this proceeding.

If you have a will, your executor will file your will with the local court
clerk and then apply to the probate judge for a legal document called letters of office. If the probate judge is satisfied that everything is in order and
approves of the person you named as executor, the judge will sign a court order requiring the court clerk to give letters of office to your executor. Once your executor has the letters of office, she or he has the legal authority to carry out your instructions in your will.

If you die without a will, or if your executor is unable or unwilling to take
on the responsibility, anyone may file a request with the probate judge that
someone be named as administrator of your estate. Anyone can be an administrator as long as he or she is approved by the probate judge, but your family or the people to whom you leave your property have priority. The administrator is issued letters of administration, which provide the legal authority to settle your debts and distribute your property as specified in the Probate Act or as instructed in your will.

The probate court process can be long, complicated and costly, or relatively
short, simple and inexpensive. This depends on the size of your estate and
whether anyone tries to contest your will. Consult an attorney for advice on how to make the process go as smoothly as possible.

Small Estates

Small estates do not have to go through the probate court process. The
Probate Act spells out a different kind of procedure to distribute a small
estate.

You are considered to have a "Small Estate" if you do not own any
real estate and if the value of your other property is less than $100,000.

The Probate Act requires your local court clerk to make available to the
public a form called a small estate affidavit. This fill-in-the-blank form has
spaces to fill in information about the person who died, his or her property,
debts, will (if there is one), surviving family members, and people to whom
property is left in the will (if there is one). A copy of the death certificate
and a certified copy of the will (if there is one) must be attached to the
affidavit.

Theoretically, anyone can complete and sign the small estate affidavit.

Note: an affidavit is a statement, made under oath, before a notary public, swearing, under penalty of perjury, that all of the information contained in the affidavit is true.

Once your heirs or family members complete and sign the affidavit, they can
use it to obtain and distribute your property as directed by the Probate Act or
as instructed in your will.

Article Source: http://freelegalinformation.info

Published by: Illinois Legal Aid