Illinois Probate Legal Questions

You need to consult with a ILL lawyer. I practice in PA. In PA, you would inherit a percentage of the estate along with his children, if there is no will. ILL probably has a similar statute. Dying without a will is called intestate, and the staute that determines how property passes, is the intestate succession statute. I am sure ILL has one. ... Read More

There is no right or wrong answer. You may be surprised to know that there is no requirement that the Will be "read". The law requires for all Wills to be filed with the local circuit court after death, which makes it a public document. Beyond that, the concern about the Will being found and recognized is a legitimate one. I once received a phone call from a daughter of a man who did a Will with us about 20 years ago. Her mother died; he had gotten remarried; and the new wife said there was no Will. It happened to be in our Will safe where he left it 20 years ago. Thus, one solution is to keep the original (or one of them) with your attorney if the attorney offers that service. We do, and do not charge for it. As an aside, I do not recommend more than one original. I make copies (clearly marked "copy") and tell clients to write on the copies where the original is. I also keep a copy in my file. There more originals there are (and copies for that matter), the more difficult it is to track them down and destroy them when you amend or do a new Will. Having more than version of a Will "out there" is a recipe for trouble. Many people will keep the original in a safe or lock box. Some will put it in a safe deposit box at a bank (though it can be problematic after your death for someone to gain access) unless someone else's name is on the safe deposit box. Originals or copies should only be given to people you implicitly trust. People can be weird. If they they know they are inheriting something (or not inheriting something), they may react in ways you do not expect; so be careful about telling people what you have done and even more careful about entrusting a copy with someone. I have seen some difficult family situations arise when children or others are told what is being done, especially if the distribution is not equal between siblings. Your estate planning is YOUR business. You should do what YOU think is right and what YOU want to do. Especially if you are not treating all like people equally, I would be careful about discussing or disclosing too much without careful thought about it. At the same time, I would also suggest that you explain why you are doing what you are doing - either in the Will itself, or in a separate document. Lack of understanding or misunderstanding often leads to family conflict. Understanding will minimize it, even if the result does not make everyone happy.  ... Read More

If the beneficiaries of the estate (heirs) take any assets that are left, creditors might be able to claim access to those assets for payment of the debts. With the credit card, if he was married and used the card to purchase family items, the credit card company could come after the surviving spouse (due to the family expense doctrine). If there is no surviving spouse, and if his assets have been exhausted to pay for his medical care and other expenses, then the answer may be - no one. If there is nothing in his estate, there are no assets to pay the creditors. Someone will need to obtain death certificates and notify the creditors of his death and of the fact that there are no assets. Creditors who believe there may be assets anyway have a right to open a probate estate to attempt to collect the debt; however, there will be nothing to collect if there is, indeed, nothing in the estate.... Read More

Under Illinois law, the named executor, or person in possession of the Will, must file it with the local court in the county in which the deceased person resided at the time of death within 30 days of the date of death. Any person who willfully destroys or alters a decedent's will or hides it for more than 30 days after the decedent's death may be found guilty of a Class 3 felony. Wills are often not filed within 30 days. They can be filed at any time; however, if you think anyone is hiding, withholding or has destroyed the will, you could contact an attorney to address the issue or call the local State's Attorney's office to see if they would address the issue. It would be helpful to know who drafted the Will to verify that a Will was actually created and has not been revoked. A person can revoke a Will at any time. It may be hard to prove whether she had a Will and that she did not revoke her Will.... Read More

There is no right or wrong answer to that question, but conventional wisdom suggests you should not for many reasons. While you have the right to amend or revoke a Will at any time, promises that are made (or perceived promises) could give someone a claim if you amend or revoke the Will and leave them with nothing. While that is a fairly remote possibility, in my experience I have observed that conveying that type of information sometimes has unintended consequences. People sometimes get funny when they know they are included (or not included) in a Will. People who were once included and later excluded often feel there was some wrongdoing by someone, and that just causes aggravation and angst that does not need to exist, it could also lead to claims as noted above. My advice is to let them by surprised when you are gone. They will certainly remember you fondly!... Read More

If the CD was, indeed, payable on death to your parents, and if your parents predeceased your uncle, then the CD would have to go through the estate of the survivor of your parents, unless your siblings were named as contingent beneficiaries on the CD. How do you know the CD was payable on death to your parents? Maybe it was not, and maybe your uncle changed it before his death, especially after you parents predeceased him. If the CD was still payable to your parents when your uncle died, and if your parents left a Will, the Will of the survivor of your parents would control the disposition of the assets. If they did not leave a Will, then their estate would go to their children in equal shares. If the survivor of your parents had an estate exceeding $100,000, a probate estate would have been necessary to dispose of their assets. It the estate was less than $100,000, then the estate could have been handled by the vehicle of a Small Estate Affidavit. There are a lot of questions left by the few facts you have given. The Bank is not likely going to talk with you. They are bound by laws that prohibit them from disclosing information except to people with a right to know. The most likely source of the answers to your questions is your siblings. Whether your relationship with them is good or bad, they are the ones who have the answers. If they are not willing to give you information, then you might need to hire an attorney to contact them and inform them of their fiduciary obligations (if any).... Read More

Any attorney who does estate planning can prepare a Will for your father at your father's direction. As these situations often lead to claims of undue influence and the like, the attorney should meet alone with your father and be directed by your father, alone, in what changes he wants to be made. Wills can be changed at any time by the testator (person who's Will it is). The beneficiaries (like your brother) do not need to know and have no right to know what is in the Will until after death. Cost will depend on the attorney who does the Will and how much is involved to prepare a Will that your father directs. Some attorneys charge flat fees; some charge hourly. He will need to ask ip front. You will find that there is a range, which usually reflects the years of experience, skill level and other things. I would not make cost the main factor, though it obviously is a factor to be considered. The main factor should be finding a reputable, experienced attorney who has a good client rating.... Read More

Knowingly only the facts you have given, and assuming that you owned the house in joint tenancy with a right of survivorship or as tenants by the entirety, the answer is, no. You do not need probate. The house is yours alone now by operation of law as the survivor. You do not need to re-title it. Since the mortgage is in your name alone, you do not need to do anything with the bank either.... Read More

There are many details needed to provide good guidance and answer your questions. More than likely, however, probate may not be avoidable. Some of the questions to be answered are: How much debt is owed? What are the other assets in the estate? Will all 10 siblings agree and be willing to sign a family settlement agreement? and others. If all 10 siblings agree, the home could be transferred to you whether the estate is probated or not; but it would require the agreement of everyone.... Read More

It depends on how your sister's name is on the account. If her name is on the account "for convenience only" then she is not an owner of the account; she can only write checks and access the account for your mother's benefit. When your mother dies, the account will be distributed according to the terms of the account (if they are payable on death), or her Will if she has one, of by the laws of intestate succession if she has no Will. If your sister's name is on the account as joint tenant, then she is an owner of the account, and the account will become hers upon your mother's death. If you are named as a beneficiary (payable on death to you), then you will receive the account whenever the owner(s) die. If the owner is just your mother, you will receive it when your mother dies. If the owners are your mother and sister, you will receive it when both your mother and sister die (if it is not changed). The mechanisms of joint tenancy and payable on death, however, are contrary to each other. I have never seen that.... Read More

Without seeing the document, I cannot be sure that I am answering your question accurately. I am assuming from your statement that the Will is not yours Will, but someone else's Will naming you and three other beneficiaries. It sounds to me like the Will gives you what is known as a "life estate" in the property. That means that you have the right to possess the property during your life as long as you live there, but the property goes to other named beneficiaries upon your death. If you have a life estate, you do have the obligation to pay the taxes as well as the obligation to maintain the property in good repair, keep it insured and so on. If you have a life estate given to you by someone else's Will, there is nothing you can do change it. You could leave the property and abandon the life estate, in which case the successor beneficiaries would have a right to take over. To get a more definitive answer, you should take the document to an attorney.... Read More

I am sorry for your loss. I would like to give you an answer, but I am not sure what you mean by "transferring" the life insurance policy to your name, and I am not sure what you mean by "proxy paper". I assume the life insurance policy was owned by your mother. Was it a life insurance policy on her life or on your life? If it was a policy on her life, I assume you mean that she was going to make you a beneficiary. If that is the case, it is too late for anything to be done about it. She has passed, and whoever is the named beneficiary is legally entitled to the life insurance proceeds. Now that she is gone, nothing can be done to change that. If it is a life insurance policy on your life, then the owner of that policy right now would be her estate. Her estate will pass to her heirs (if she had no Will) or to her legatees (the people named in the Will if she had a Will). If you are one of the heirs or legatees, you would need to seek to have the policy ownership transferred to you through the estate. It may be counted as part of your share of the estate (if it has any cash value).  ... Read More

It all depends on what the Will provides. As for Virginia, if the will did not provide for successors in the event one of the them predeceased her, then the legacy would lapse and go to the two survivors. On the other hand, if it did provide for successors (like descendants), it would go to the designated successors. When your aunt died, who ever survived her would inherit the share left to them. So both Ed and Richard would be entitled to their shares (there are potential exceptions, but I don't want to get too complicated). Even though Richard died four months later, his share vested in him; and now his estate is entitled to it. .... Read More

It depends. Is a probate estate opened? If the answer is yes, then the car needs to be handled as part of the estate. If no probate estate is opened and there are no other probate assets, and there are no unpaid debts, you could obtain a small estate affidavit from the Secretary of State's office and handle it that way. if there are other assets, it will depend on the total value of the assets or if there are debts that are unpaid, there may be no choice but to open a probate estate.... Read More

I cannot answer your question definitely with the few facts you have provided. This is a common scenario and one that people who do their wills should be mindful to address with specificity so that their heirs are not left guessing. If a court of law must decide the issue, it will come down to the evidence of what the decedent intended. The first thing to look at is the Will, if there is one. If the Will does not address it, or there is no Will, then we must look at what other evidence exists. In these situations, a court will not accept the testimony of any person who has an interest because it is too easy for people to lie or be mistaken, and the decedent is not around to confirm or deny what was said. Therefore, the law deems that testimony inherently unreliable and will not allow it. That means we must have testimony of people who are not interested (directly or indirectly) or documentary evidence. There often is not very much evidence to go on. The law deals with these problems by making presumptions. For instance, money given by a parent to a child for no consideration is presumed to be a gift. Presumptions, however, may be overcome with evidence to the contrary. The designation of "loan" in the memo line of the check or in the check register is evidence that overcomes the presumption. It shows an intention that the money was not meant to be a gift at the time it was made. Any other reliable (objective) evidence would be considered too. If there is no other evidence (that the law will allow), it is likely that a court would consider it a loan because of the memo/register designation. A problem often arises when a parent makes a loan to a child and later tells the child it is forgiven. If the parent does nothing but tell the child, verbally, there is no reliable evidence of the loan forgiveness after the parent dies. That may be an unfortunate result, but a court cannot accept the verbal testimony that may have been spoken by a deceased person to an interested person. For that reason, it is very important for people to be specific in their wills about any loans and whether those loans are intended to be forgiven upon death or to be paid back.... Read More

I am afraid that question is impossible to answer without more facts. Whether the Will is worth contesting depends on the size of the state and the facts. If there is a reason to overthrow the Will, what is the proof? If someone exercised undue influence, if the decedent did not know or understand what was being signed, etc. it may be worth contesting. If the decedent did a new Will and intended to leave out people, and if no one was influencing the decedent unduly, there is probably nothing that can be done. There could be other reasons that a Will is invalid, but it all depends on the facts. You should meet with an attorney sooner, rather than later, and explain all of the facts that you know, both good and bad. It doesn't not help you to provide only the favorable facts, as the attorney will not be able to give you a candid and accurate assessment if you hold back the facts that you think are not favorable to your position.... Read More

You are an heir, so your are entitled to some information, which it sounds like you have gotten. If you feel that you may have some rights in your mother's estate, you should retain an attorney to explore that possibility. A probate estate, if one has been opened, is a public proceeding and the pleadings and other filings are public documents. If your mother intentionally did not leave anything to you in the Will, you are not entitled to anything from the Probate Estate (subject to a potential Will contest, if there is any basis to contest the Will). Life insurance, it there is a beneficiary designation, is not a probate asset; it will be distributed to the named beneficiaries. If you are a named beneficiary, you will be entitled to receive the life insurance proceeds, or a portion of them if there is more than one beneficiary. Without any more facts, I cannot give you a good answer. You should see an attorney and get some advice.... Read More

Based on the facts you have stated, your memory is the best thing you have. Perhaps, walking the are around the Drake Hotel would trigger your memory regarding where the office is. Unfortunately, there is no repository for Wills. People do not file them anywhere when they are alive. I would expect the Will to be with your partners important papers. The only other place to look is the attorney's office.... Read More

Many attorneys will represent a seller of real estate for a flat fee. The fee is usually paid from the proceeds of the closing. In this instance, however, there is more to it than a simple residential real estate transaction. You need an attorney who is familiar with probate and who may be willing to work with the family to sell the property without having to open a probate estate. If all of the heirs are in agreement (a key point), real estate can be sold by entering into a family settlement agreement by which all of you agree to take full responsibility for the "estate" (including any claims that might be made against the estate) and to sell the property through a title company providing an undertaking and a bond in lieu of probate to the title company. If you are all in agreement, enter into the family settlement agreement, and provide the title company with all of the documentation they request in order for them to be willing to provide a title policy to the buyer, you can sell the property without the need for a probate estate. The additional work involved in handling the real estate this way will cost more than a simple residential real estate closing, but most attorneys will agree to be paid from the proceeds when the house sells. Hourly rates range quite a bit from area to area, and even within the same area depending on years in practice and other things. The important thing is to find an attorney who is knowledgable and experienced that you feel you can trust. Since handling real estate in this way (without a probate estate) is not the norm, you also want to find an attorney who has done it before and who has a good relationship with a title company that is willing to issue a title policy on this basis.... Read More

Based on the few facts you have given, and without any other information, the property is owned by your brother's estate. The Estate would be "responsible" for the property. Your brother's heirs would be the beneficiaries of the property. This is a very simplistic answer. There are many possible facts that might be relevant to the question regarding who might have an interest or a claim in the property. If you want a definitive answer, you should meet with an attorney who can ask questions and give you a more specific and definitive answer to questions and, perhaps, raise questions you have not even asked.... Read More