"Small Estate" Probate Process in IL?

[ERD50]

DW is executor and primary successor trustee of her mother's (my MIL) estate. MIL passed peacefully last week, and I'm trying to help DW wrap things up.

Things are in good shape, as we had reviewed everything several years ago when my FIL passed, trusts were in place and updated as needed at that time, IRA beneficiaries set, etc. The will is a "pour over" into my MIL's trust (the only named beneficiary in the will).

Major assets are all titled in the trusts name, so the only "personal tangible assets" would be very minor; furnishings, clothes, kitchen stuff, TVs, etc - all well under the $100,000 probate limit in IL and most will just be donated to charity to clear her assisted living apartment. One checking account for everyday bills and SS/pension deposits, and DW is joint on that (we will call Monday to verify it is WROS, but still all well under $100K).

My question is about the specific "small estate" probate process, and I'm pretty sure I'm just over-thinking this, but I can't seem to find the specific answer in all my searches. I will also try calling the county probate court Monday, not sure they will be helpful or not.

I'm just not clear on what (if anything) we need to do to document that this is a "small estate". There is a "small estate" affidavit form on the IL website, but in all the instructions I find, this is not filed with the county/state. It appears to only be used to present to a bank (for example) as documentation to release funds in the deceased's account to the executor or beneficiary. In the case of a larger estate under probate, I guess the bank would get this sort of documentation from the probate court. Since we don't need to go to anyone to release anything, it seems we have no probate forms to fill out (other than filing her will with the county).

It just seemed to me we would need to document this somehow. But OTOH, I guess if there are no funds to collect from any accounts, there just is no issue, so no need for documentation? I suppose the only "cheating" that the government would be concerned with is, assets could be 'hidden', like cash or gold or collectables. But I guess that's the case whether you claim to have a small estate or a large one. It's not like anyone from the government is going to walk in and inventory everything on the day she passed. I suppose cheaters would be caught through other means, like unreported income (Al Capone style)? I've told DW to take pictures of everything, that should at least document that everything in the apartment was of modest value.

Bottom line if that got too long to follow - Do we seem to be OK without any formal documentation that this is a "small estate" that does not require probate?

TIA - ERD50

 

[gwraigty]

My father's estate was insolvent. After the legal time period for potential creditor claims against the estate ran out, I was contacted by a lawyer that my father had hired shortly before his death regarding a hit-and-run in which he had been the victim. The lawyer had continued working on the case and had just won a small settlement. I appointed him as administrator of my father's estate. He filled out the form that releases small estates under $35,000 from probate court oversight. With that form, he was able to release the insurance settlement to me, as well as some life insurance funds that I couldn't previously access due to a complication. He came to my home to start the process and to finish it. I never had to set foot in the probate court, so I'm not privy to all the behind the scenes details. It was my understanding that once the release from administration form was approved, the court was not involved from then on.

 

[jazz4cash]

I don’t know. I always figured if you paid someone to prepare a will and trust, answering minor follow up questions like this should be included in the fee. After all, It gives them a shot at additional services for a fee.

 

[ERD50]

Thanks for the quick replies - I'll be away most of the rest of the day, but will catch up then.

I will search for a "release from administration form" - that's the kind of thing I'm thinking we should have?

I also want to avoid going to the law firm that set this up. They are supposed to be the "pros", but I caught several of their mistakes, and they nickel/dime her for every little thing (where 'nickel' = $50, and 'dime' =$100), and created work where we could have easily handled the issue ourselves if they offered that we could just fill out a simple form X. They turn a 10 minute molehill into a billable mountain. Was not happy with them at all.

-ERD50

 

[gwraigty]

When I did a quick Google search on Illinois probate court release from administration, the results are by county. The term used in Illinois appears to be the Small Estate Affidavit you mention in your OP. You seem to have a good grasp of what needs to go through probate vs. POD. If there are no financial amounts that would need to pass through probate or through the small estate process, you may not need to bother with forms at all.

 

[ERD50]

Called the county probate office this AM. They verified, if under $100,000 and no personal accounts that require documentation to be released, there are no forms to fill out, just file the will. So sounds good. I also got right through to a person, no menu, and she answered everything for me. That was good.

I don't know why none of the other sources make this clear, it really is simple.

Another little funny wording on everything. All these sources say that you must file the original of the will with the county. But most say "within 30 days of the date of death". So what does that mean exactly? I was wondering if the lawyers filed it as part of their process. Does "within" mean "within 30 days after death, but could be done anytime before"? It's open to interpretation, I'd say.

Well, the county website was clear on this (emph mine):

Wills must be filed within thirty days after the date of death
Wills cannot be filed prior to death
The original Will must be filed
The deceased must have been a resident of Lake County
The clerk will maintain the original Will​

Now there you go! That tells me exactly. Why can't all these other sources spell it out that clearly?

Maybe this comes from some of my background writing software. Procedural computer code does not deal with ambiguity. You state exactly what you want, no more no less.

-ERD50

 

[cathy63]

Now there you go! That tells me exactly. Why can't all these other sources spell it out that clearly?

Maybe this comes from some of my background writing software. Procedural computer code does not deal with ambiguity. You state exactly what you want, no more no less.

-ERD50

The lawyer in my family is fond of explaining to the engineers in the family that "The law is not a specification or blueprint. It requires nuanced interpretation." This tends to get eye-rolls from the engineers who think we'd all be better off with more specifics and less nuance.

I am sorry for the loss of your mother-in-law.

 

[imoldernu]

ERD50,

Thank you for this thread.

 

[JoeWras]

Called the county probate office this AM. They verified, if under $100,000 and no personal accounts that require documentation to be released, there are no forms to fill out, just file the will. So sounds good. I also got right through to a person, no menu, and she answered everything for me. That was good.

My Dad's Illlinois accounts were in trust, no non-trust stuff.

We spoke with our lawyer to get the instructions you outlined above. Do not ask me how much we paid for this advice.

So, our process was to go to the county courthouse, go up to the window, present the will, and the clerk took it, stamped it and yelled, "NEXT!"

We were done.

Good luck and sorry for your loss.

 

[badatmath]

I have to file a will even if not going thru probate due to small estate? Is that correct? Is it public information then?

 

[Cobra9777]

I'm in Texas, not IL. But I've been wondering the same thing.

My FIL passed last December. All joint accounts were re-titled to MIL individually. His IRA assets transferred to MIL (the beneficiary). House and car were re-titled to MIL individually. Life insurance paid. SS and a small pension both changed to surviving spousal benefit. His clothing was donated and a few personal effects of sentimental value were split up between DW and her brother.

He has a will. But as far as I can tell, it serves no purpose. All assets were distributed by means of beneficiary designation, joint ownership, or POD/TOD provision, all of which supersede the will.

I've been wondering if something needs to be filed with the County to make this "official." But I don't think there's any point, nor any requirement that I can find.

 

[gwraigty]

He has a will. But as far as I can tell, it serves no purpose. All assets were distributed by means of beneficiary designation, joint ownership, or POD/TOD provision, all of which supersede the will.

I've been wondering if something needs to be filed with the County to make this "official." But I don't think there's any point, nor any requirement that I can find.

I would agree that there's no need to file the will. If nothing needs to go through probate, I don't know what the purpose would be. My mother had a will, but left nothing for me to inherit. I didn't bother filing it.

 

[JoeWras]

As executor, I knew a will existed, and therefore I was required to file it.

But, Mom and Dad made sure this was all clean. The will is very simple since most assets go through trust. So although it is "public," very little is mentioned in said will. They did their planning.

The last thing I wanted was some third cousin causing us problems, and we had a few goofballs in the family, as most do. This makes it very clean and intentional should any questions or contestations come up.

Consult your state laws, don't rely on our musings on the internet. Here's a pointer for Illinois that basically reflects what our lawyer said.

Do I Have to File a Will in Illinois? - Chicago Probate Law

If the decedent left a will, it must be filed with the probate court system. Illinois law states that the will must become public record upon the death of the person. As such, it must be filed with their local county clerk within 30 days of discovery. It is worth noting that it is a felony in Illinois to destroy a will, or to willfully hide one for more than 30 days.

 

[ERD50]

Thanks to all for the comforting thoughts.

The lawyer in my family is fond of explaining to the engineers in the family that "The law is not a specification or blueprint. It requires nuanced interpretation." This tends to get eye-rolls from the engineers who think we'd all be better off with more specifics and less nuance. ...

Yes, my theory is that lawyers love the nuance so that you need a lawyer to interpret for you. Job security. I've known a few engineers to take that approach, but I would not call them good engineers. In fact, when one of my bright engineers once mentioned (half-jokingly) that holding info no one else knows would be good job security, I took the opportunity to shut that down real quick - I told the group that all of our jobs is to make our bosses look good, and if I can't fix a problem because you are the only one who knows something, and I can't get a hold of you, you just made all your bosses look bad, and that won't be good for any of us, especially you! Your replacement will be a team player. Work together!

At one point in the conversation with those lawyers on my FILs estate a few years back, the lawyer glared at me and said "You're an Engineer, aren't you?" If it wasn't for trying to keep things calm for my MIL, I would have snapped back "Are you a lawyer?", as I had already corrected them on a couple thing they had wrong. Arggggh!

My Dad's Illlinois accounts were in trust, no non-trust stuff.

We spoke with our lawyer to get the instructions you outlined above. Do not ask me how much we paid for this advice.

So, our process was to go to the county courthouse, go up to the window, present the will, and the clerk took it, stamped it and yelled, "NEXT!"

We were done.

... .

Yep, that was my experience, they take a simple thing, and manage to turn into a drawn out process that takes more time/effort from you, and then they charge you $1,000 for the 'privilege'.

I'm in Texas, not IL. But I've been wondering the same thing. ....

He has a will. But as far as I can tell, it serves no purpose. All assets were distributed by means of beneficiary designation, joint ownership, or POD/TOD provision, all of which supersede the will.

I've been wondering if something needs to be filed with the County to make this "official." But I don't think there's any point, nor any requirement that I can find.

I would agree that there's no need to file the will. If nothing needs to go through probate, I don't know what the purpose would be. My mother had a will, but left nothing for me to inherit. I didn't bother filing it.

Well, this is specific to your State. In Illinois, they are clear that you are required to file a Will. But that looks to be a very simple process.

As JoeWras just posted, the Will doesn't really need to make anything sensitive public. A "pour-over" will just simply says that everything gets handled by such-and-such trust. That trust is not public.

-ERD50

 

[The Cosmic Avenger]

I didn't bother filing my father's will because the one I found in his papers was over 20 years old, and named my mother, who had divorced then predeceased my father in those 20 years. It then named me, the only child, as the secondary beneficiary, and that was it for beneficiaries. And he had under $20K in assets that could have been eligible for probate, $15K in estate expenses, and the state he lived in has something like a $15K vehicle and $15K household items exception, so the estate attorney I paid for a couple of hours told me to just file for a small estate and nothing would need to be probated. Best money I ever spent, they actually got on the phone with a couple of places for me that had been giving me grief, cleared it right up.

 

[38Chevy454]

Being an engineer, I just have to laugh at how what seems obvious to an engineer is so confounding to a lawyer. For such a critical document as a will, why is there any reason for it not to be very exact and specific? I guess the best answer is job security for the lawyers.


I had an aunt that died with essentially no assets, and I along with my siblings were the closest heirs. Not sure how, but the funeral home found me and siblings and contacted us. I contacted an estate type attorney in the state where she lived and he gave the best advice - don't file anything, don't become associated with anything as it would only create potential hassle for me. There was no financial gain, but almost certain mental pain. So I dropped it, and let the state deal with it as an indigent individual death. There was not anything to even be concerned with a small estate probate. I had no idea if a will even existed, and was somewhat knowledgeable to know there was no assets, she lived on SS alone with no permanent residence.

 

[Doribe]

I am also in Illinois. My mother's estate consisted of a trust, personal items, and a small checking account. I filed the will and trust with the county. The small estate affidavit was given to the bank for access to the checking account. I got an estate tax number and opened an estate checking account. I used the estate checking account to collect liquid assets, pay her bills, and disburse assets to my siblings. I am not sure if I did everything right, but it has been five years and no-one has come after me.

 

[Bamaman]

If you get down to it, Probate is where the judge gives the executor the authority to sign for the deceased in order to liquidate their assets. Of course, the court wants to be assured that estate taxes have been paid and that any liabilities of the deceased have been paid.

If there's a will and any accounts and real estate are titled "joint with rights of survivorship", those assets rollover to the spouse. Hopefully any Life Insurance, IRA's and other funds have a primary and secondary beneficiary that's excluded from the estate.

In many places, a deceased that has no real estate or other substantial assets doesn't even have to probate a will. Often it's the last person standing (in a generation) that has to have a will probated if there's any real estate not owned by a trust.

In many cases if all real estate has been sold/liquidated prior to death and a child is listed as a check signer, most of the work is furnishing death certificates to banks, life insurance companies and to the IRS. You'd have to obtain a estate EIN # in order to do that last tax return. And no probate is required.

 

[JoeWras]

In many cases if all real estate has been sold/liquidated prior to death and a child is listed as a check signer, most of the work is furnishing death certificates to banks, life insurance companies and to the IRS. You'd have to obtain a estate EIN # in order to do that last tax return. And no probate is required.

Yes.

But in Illinois, if a will exists, it still has to be filed. You may go to the clerk who has the sign "probate" over their head, but that doesn't necessarily mean the probate process (as in gain control over assets titled to the deceased) is necessary.

This is a good reminder to us all to make sure our wishes are known and things are in proper order before we die. My mom and dad wanted to keep it clean for me and my siblings, and used a trust. The will was just a formal procedure. In DW and my case, we currently do not have a trust. We have a will. Probate will be pretty significant should we both perish tomorrow. However, we have professionals named to handle that so our heirs (no kids) will just get the payout in a clinical way. True, there will be significant costs. We're dead, we don't care.

We do plan on reworking this next estate document check up -- if we make it that long.

 

[gwraigty]

Well, this is specific to your State. In Illinois, they are clear that you are required to file a Will. But that looks to be a very simple process.

Yes, perhaps my wording was bad. I stand corrected. I spoke only relating my experience in Ohio. I wasn't trying to pass myself off as some legal expert on this matter. I hope most people understood that. I also realize that state law differs on many matters. I figure most posters realize that also, but I might be wrong. I'll be sure to be more careful and qualify my responses more appropriately in future, if I even bother to respond in future.

Besides, my response about that wasn't to you, or regarding Illinois processes. My earlier responses were though. I'd hoped you found them helpful. I may have been mistaken about that as well. I wish you well in wrapping up these matters with as little fuss and stress as possible.

 

[ERD50]

gwraigty, I was only trying to make it clear to anyone following the thread. Sometimes people jump in, and maybe didn't read every post, or return after a while away, and see a thread about "Probate process in IL", and might assume every post is IL specific.

Maybe I'm misreading, but it seems you took some offense in my post? None was intended in any way. And though I quoted your post, I was just making a general statement that everyone needs to be aware (and yes, some may not be) that this varies by state, and to check their specifics.

-ERD50

 

[gwraigty]

gwraigty, I was only trying to make it clear to anyone following the thread. Sometimes people jump in, and maybe didn't read every post, or return after a while away, and see a thread about "Probate process in IL", and might assume every post is IL specific.

Maybe I'm misreading, but it seems you took some offense in my post? None was intended in any way. And though I quoted your post, I was just making a general statement that everyone needs to be aware (and yes, some may not be) that this varies by state, and to check their specifics.

-ERD50

No problem. I was somewhat angry at myself for failing to consider some of the very things you mention. I read every post and forget others don't, etc. Though you did make me look up Ohio law on the matter , as I'd really not heard of having to file a will when there was no estate to probate. (I had consulted an attorney after my mother's death and followed his recommendations, which did not include filing a will with the county. That's the short version. )

 

[Doribe]

In my own estate plan, I do not currently have a trust. I have all liquid assets in POD. I've been working on condensing and simplifying all of my liquid assets. My real estate holdings are held jointly. My plan is for the survivor spouse to put the real estate in a trust after the first one goes.