What is Probate Estate Administration?

“Probate” is a legal proceeding in which the Court: (i) appoints a representative (administrator or executor) of your Estate after your death, (ii) oversees the payment of debts, taxes, and expenses, and (iii) determines how your probate assets will be divided and distributed (either in accordance with your Will if you have one or in accordance with Illinois law if do not have a Will). FMS Law Group can assist or advise the estate administrator/executor with respect to all aspects of the probate administration process.

In Illinois, at your death, if the value of your “probate assets” equals or exceeds $100,000 or includes real estate, probate proceedings are required. “Probate assets” are assets held individually which do not pass by beneficiary designation. Only probate assets are required to go through probate administration. “Non-probate assets” include the following and are not required to go through probate administration: (i) property owned jointly with rights of survivorship, (ii) property that passes by beneficiary designation to a beneficiary other than your estate, and (iii) property held in trust.

Probate is usually undesirable because of its associated costs and delays. Probate proceedings involve certain required costs (such as filing fees, newspaper publication fees, and certified copy fees). Even more costly are the attorney’s fees for probate court appearances and document preparation. Further, probate proceedings must be open for at least 6 months in order to allow creditors to make claims against the estate (and allow anyone to contest a Will) prior to making any distributions to the beneficiaries. This can be an inconvenience or even a hardship to certain beneficiaries who may need the inheritance for their support.

What is Trust Administration?

If you have a living trust and have properly funded it during your lifetime, then guardianship proceedings would not be required in order for the successor trustee to manage your trust assets in the event of your incapacity. Further, probate estate administration would not be required in order to transfer your assets to your beneficiaries at death. Rather, at your death, the successor trustee would be able to take over management of the trust assets immediately to pay your debts, taxes and expenses and distribute the trust assets to your beneficiaries according to the trust agreement.

Although formal probate administration may not be required, the successor trustee still has a responsibility and duty to administer the trust according to the terms of the trust agreement and as required by Federal and state law. In addition, the successor trustee will be required to notify your beneficiaries; collect all trust assets; obtain a taxpayer identification number for the trust and update trust accounts with the new number; identify your creditors and either pay or negotiate to lower or write off your bills; keep good financial records; provide an accounting to the beneficiaries; file your final individual income tax returns; file your estate tax returns (if required); file fiduciary income tax returns for the trust; set up any new trusts that are required to be created for the benefit of minor, disabled or other trust beneficiaries; and distribute trust assets to beneficiaries in a timely fashion. FMS Law Group can assist the successor trustee with any aspect of these administrative duties and can advise trustees before he or she takes any action that could be considered unwise or unduly favor one beneficiary over another.

What is Non-Probate Estate Administration?

Even when formal probate proceedings are not required, FMS Law Group can still assist the representative with the administration of the estate. For example, if the value of your “probate assets” may be less than $100,000 and therefore does not require formal probate proceedings, your representative (whether a relative or nominated executor if you have a Will) may still require the assistance of an attorney to collect such assets and to advise him or her with respect to the distribution of those assets, whether pursuant to Illinois’s intestacy statute or pursuant to Will. Further, the representative of a non-probate estate may need advice with regard to other miscellaneous administrative tasks, such as the payment of debts and the filing of any required income tax returns or estate tax returns.