Illinois Probate Legal Questions

Contact a local probate lawyer.  A Will has no local effect until it is admitted to probate (proving).  The duty of the executor named in the Will and appointed by the court is to collect the assets, pay the debts and distribute the rest according to the terms of the Will.  In many states any beneficiary named in the Will can demand an accounting a certain period after the court appoints and executor and if distributions are not made after a certain period ask the court to replace the executor.  The widow is not entitled to convert the estate's assets to her own contrary to the express provisions of the Will.... Read More

A Durable Power of Attorney is only effective while the person who granted it is alive:  an agent cannot act for a dead person because the dead person no longer can give instructions or receive reports. A beneficiary under a life insurance policy therefore cannot add or change names of beneficiaries.  He or she can, however, gift money after it is received.  The current federal gift tax exemption is $15,000 per recipient.  If the gift is larger, the giver must pay a gift tax.... Read More

If your brother owns the property, he can change the locks.  If your mother owned the property, or other property, hire a California probate lawyer in the county in which she lived to file an Application to Determine Heirship and have the administrator divide the property among her heirs.... Read More

A quit claim deed means that the signer is giving up (quitting) any claim he or she may have to the real estate.  It is usually used with regard to rights of way (easements) and boundary disputes. Someone who is being asked to give up inheritance rights should be asked to sign a disclaimer.  Their inheritance will then pass to their children (not to other heirs).... Read More

Your state, like mine, may require an Inventory to be filed with the court as a public document and let beneficiaries demand an accounting after a certain amount of time has passed.  However, a life insurance policy pays to the named beneficiary and is not part of the probate estate listed on the Inventory (or the Executor's responsibility).  A bank account may be pay-on-death or joint with right of survivorship.  If so, it, too, is not listed on the probate estate and is not the Executor's responsibility.... Read More

For assets that your mom owned solely in her name that do not have named beneficiaries, the court needs to appoint an executor of her estate.  If you and your brothers are her only heirs (no surviving spouse, domestic partner, other living siblings, or children of deceased siblings), then you both have priority to be appointed.  You can serve together or your brother can sign a form renouncing his right to be appointed and agreeing to your appointment.  The forms are available with the probate court for the county where your mother lived. If your mother had no Will, the law of intestacy for the state where she lived applies to the distribution of her assets described above.  If your brother does not want his share, I recommend getting that in writing. I'm sorry for your loss.   ... Read More

Yes, you can exclude a child.  The best way to do this is to state in your Will that you are intentionally excluding them, rather than just not listing them as a beneficiary. Another option would be to have inherited funds for your disabled child go into a Special Needs Trust.  These trusts do not disqualify individuals from receiving needs-based governmental aid but can be used to pay for extras, such as special programs or care, electronic devices, travel, eating out, etc.  A trustee, appointed by you, determines how and when any trust assets are paid on behalf of your child, and, upon your child's death, any remaining assets in the trust can go to your remaining children or grandchildren.  Organizations that work on behalf of the disabled in your state may have Special Needs Trust templates you can use. ... Read More

Hi - This is a difficult situation.  She is the one that needs to execute a power of attorney or a Will, so, if she is unwilling to do so, you are at a stalemate.  You could try to get others, such as trusted friends, a bank teller or someone she might know, to recommend it.  You could try online sites, like www.nolo.com, that provide forms so that she would not have to meet with a lawyer.  Also, for mother's, you could talk to her about how this is worrying you.  Mothers often want to take care of their children even while they are unwilling to do things for themselves. Short of those options, I would see about getting check writing privileges for her accounts so that you can pay her bills if needed, being authorized to talk to different businesses she deals with (cable company, utiliities, etc.) by getting added to her accouts by whatever process they require.  She may be willing to add you as a joint owner of her property, so that you will inherit it automatically upon her death without need of probate.  Or she could execute pay-on-death designations for her bank and any investment accounts, which again would result in your receiving those funds without probate process.   I wish you luck.  ... Read More

Hi - Most estates are closed within a couple years, so you should check with the probate court with your deceased relative lived to see whether the estate is still open.  You do not have an obligation to inform other relatives.  If these relaties are entitled to a part of the estate, however, that portion will be held for them by the estate or given to the state to hold in their name as unclaimed property. I would check the unclaimed property division to see whether any estate property is already being held there.... Read More

The Will, by itself, to the extent that it directs the distribution of all your assets to people/charities you name will exclude others that you have not named. With children or spouses who are being excludeed, we like to expressly state the intention to exclude them. That is because children and spouses are the typical recipients of estates. Siblings are not as typical, but expressly stating your intention to exclude your brother does not hurt. The only way your heirs might receive something from your estate is if all of the people you named do not survive, and there is no direction in the Will if that happens. If you are naming charities, and if a charity you have named is not around when you die, that share will need to go to another charity of similar type. The law presumes that you intended to make a charitable gift, and your intention will be carried out. ... Read More

In all seriousness, you should meet with an attorney well before filing a petition to open a probate estate. The probate estate may not even be necessary in the first place. Attorneys will charge an hourly rate, typically, because it is impossible to know what issues or challenges may be encountered and how difficult those issues and challenges will be to address. The cost will also depend on how much of the footwork the executor or administrator is able and willing to handle and other factors. Regardless of the size of the estate, there are certain things that must be done for every estate, and so there is a certain minimum of work that must be done for every estate. In my experience, you should expect to pay $2500 (+/-) at a minimum. ... Read More

If he is incompetent he cannot sign a financial or general durable POA. You will need to go through court for what they call a guardianship or conservatorship. As far as the will goes, he does not have capacity to sign a new one. Review his present will with a local estate lawyer to see if it is legal and can be filed upon death. ... Read More

Consult with a local elder law attorney in IL. My recommendation woudl be to draft a will which states how you want your property to pass. Some states have a provision that allow a wife to challenge, or "elect against"the will of a spouse who has disinherited them. However, it does not sound like you are disinheriting her totally. ... Read More