Probate – What is it?

Probate is the legal process you may have to go through to gain access and control to the assets of a deceased person. If a person dies and upon his death he owns assets in his own name solely, (real estate or personal assets such as a bank account, brokerage account, house or car, with a combined total value of $100,000 or more) someone will have to petition the Probate Court in the County in which the decedent resided to become the legal representative of the decedent’s estate to get control of those assets to pay debts (medical, funeral charge cards, mortgage, taxes, etc.) of the decedent and then eventually distribute the remainder of the decedent’s assets to his heirs and/or legatees listed in his Will.

There are two types of Probate- Testate and Intestate. A Testate probate is when the decedent dies with a Will. In order for the Will to be valid and to allow the decedent’s assets to be distributed to who he has named in his Will, that Will must be admitted to Probate and Letters of Office issued to the person the decedent has appointed in his Will to be the Executor. The other type of Probate – Intestate Probate is when a person dies without having a Will. In that case, someone (not necessarily someone who would of been chosen by the decedent) who has an equal or preferred right to be named as an Administrator under the Probate Act must petition the Probate Court for Letters of Administration. There is usually an additional cost with a Intestate Probate vs a Testate Probate due to the fact in a Intestate Probate the Administrator must get a surety bond equal to usually 1 ½ times the value of the personal assets of the estate. This requirement of a surety bond is usually waived in a Will.

Probate will last at least six months (the Claim time period) and it is not unusual for a Probate case to last longer, depending on the type of assets in the Probate Estate. For decedents residing in Cook County all Probate proceedings are conducted at the Daley Center in downtown Chicago, even if the decedent resided closer to one of the suburban Cook County Court locations. Currently, no Probate matters are heard at any of the suburban Cook County Court locations. Decedents residing in any of the collar counties at their death will have their probate estate conducted in that particular County’s Courthouse.

If you have a loved one or friend who has died and a financial institution, either a bank or brokerage house, has asked you or a family member of the decedent for Letters of Office, contact our office to discuss the available options regarding the probate of the decedent’s estate or even if Probate is necessary for the decedent.