Illinois Probate Legal Questions

There is a provision in the Probate Act that allows a copy of a Will to be probated when the original is "lost". Unfortunately, you do not even have a signed copy of the Will. The attorney, apparently, can confirm that your aunt signed the Will and took it with her; however, that does not necessarily mean that she intended that Will to be probated. Maybe she changed her mind and destroyed the original. If there is no Will that can be proven, the of intestate succession dictate who are the beneficiaries of the estate. In other words, her heirs will get her estate. Her heirs would be a surviving spouse or children If there is no surviving spouse or children, but there are surviving grandchildren, they would be the heirs (not great grandchildren). Someone will need to open the probate estate. Anyone could attempt to introduce the unsigned Will, but I doubt the attempt would be successful. If everyone gets attorneys and fights over everything, her estate could be frittered away with attorneys fees. Hopefully, that does not happen. Reasonable minds should prevail. If you have the willingness to do it, perhaps, you should see an attorney and open the probate estate.... Read More

How old are your children? Are they minors? Do you trust them to spend the money wisely? Will they get along? What of they do not get along? Who will be in charge of the real estate? What if one wants to sell and another wants to hold on to it? Nothing will happen if they cannot agree. Who will pay the funeral expenses, medical bills, other debts? Who will pay the real estate taxes on the house? What happens if one child predeceases you? If your children have children, would you want the share of a deceased child to go to their children or to your other children? What if one ends up with a large debt so that everything you leave them will just end up in a creditor's hands? If any of these questions or others raise concerns, you need a Will.... Read More

The easy answer is to say hundreds of thousands (for a matter like the infamous McCaskey estate in which everyone hired attorneys and fought for years). The real answer is that it depends. Attorneys usually charge by the hour for handling probate matters. Charging by the percentage is frowned upon because a percentage may have little or nothing to do with the actual work required to handle a particular estate. An estate of $1,000,000 could theoretically cost no more than an estate of $100,000 (and vice versa) if there are no issues and everything is straightforward. The same basic work is involved to probate every estate. Differences in cost are attributable to many different factors including the hourly rate of the attorney. Hourly rates are usually a function of experience, reputation, years in practice, etc. Aside from the hourly rate is the efficiency of the attorney and staff. It can be less expensive to hire an attorney with a higher hourly rate sometimes because with more years in practice and more experience in handling probate estates, an attorney is often more efficient. Another factor how much of the background, information gathering and how much of the work the executor/administrator can do without relying upon the attorney and staff. The more hand holding and follow up work the attorney and the attorney's staff must do, the more it will cost. The more responsive the client is and the more the client is able to follow through with things, the less time the attorney and office staff will spend. There are many factors out of the attorney's or client's control as well, including the existence of unique issues that must be resolved; claims that are filed by creditors, heirs and other interested parties who are contentious; Wills or Trusts that are not well-drafted and require interpretation; assets that require a high degree of skill to handle (like businesses); loose ends left by the decedent that need to addressed; information that is hard to find; and any number of issues that arise and require resolution. The time an attorney spends on a probate matter will depend on the number and complexity of the legal and other issues that come up and need to be addressed. When choosing an attorney, you should find out what the attorney's experience is, how many probate estates the attorney handles in a year, how many years the attorney has been doing probate, what the hourly rate is, what are the rates of legal staff and who will be doing the work, etc. You should also make sure the attorney has a good reputation among other attorneys and former clients if you can. A referral from another person is always better that picking up the phone book or searching the Internet. Still, much can be discovered from a website, resources like Lawyers.com and other things that can be found on the Internet that will give you a good idea of the attorney's ability and reputation.  ... Read More

Although you do not give many details, I will answer what I can. Trial court decisions get reversed all the time, but the percentage of trial court decisions that get reversed is not high. If the basis for the appeal is highly factual, the percentage is very low. Appellate courts usually will not second guess the trial court's assessment of the testimony and facts because a trial judge (or jury) is in a better position to assess the witnesses and their credibility. If the basis for the appeal is an issue of law, appellate courts are much more apt to over rule a trial court. Some issues are a mixed question of law and fact. The same rules apply (deference is given to factual determinations but not legal determinations). It is impossible for me to speculate with any degree of accuracy without much more information than what you have given. Someone would need to review the Will document and the transcripts from the trial to give you a good assessment. Further, how the matter might affect the heirs and people named in the Will depends on whether the trial court decision is upheld or turned over. If you would like an informed opinion, you will need to see an attorney who can review everything.... Read More

Section 6-1 of the Illinois Probate Act obligates the person who has the testator's Will in his possession  to file it with the Clerk of the Court "immediately upon death". It further provides that anyone who "willfully secretes" a Will for the period of 30 days after death of the testator is guilty of theft of property, a class 3 felony. A "testator" is a person who signs a Will. The fact that she has acknowledged the Will to you, however, suggests that she would not be guilty of secreting the Will. Perhaps, a call to her asking her when the Will is going to filed is in order. If that does not work, a letter from an attorney may be in order. If that does not work, then you may want to take it upon yourself to initiate a proceeding in the local (Illinois) probate court to compel her to file it.... Read More

Based on the facts you have given, your mother's estate would be considered a "small estate". Small estates do not need to be probated; they can be handled through the device of a small estate affidavit, assuming that you can meet the criteria (no creditors). If you plan on selling the real estate, you must still pass good title to the buyer. Many title companies will insure title to a buyer with the right documentation and and a bond in lieu of probate (an extra fee). I usually do a family settlement agreement signed by all of the heirs and legatees (other people named in the Will) to protect all the family members. Answer is not meant to establish an attorney/client relationship or to be taken as legal advice to be relied upon in your specific situation. You should discuss your options with an attorney who can explore all of the facts and give you specific advice.... Read More

I am assume there are many facts that are relevant to the estate that have not been stated. To answer the bare question, however, Section 9-1 of the Probate Act provides as follows: A person who has attained the age of 18 years, is a resident of the United States, is not of unsound mind, is not an adjudged disabled person as defined in this Act and has not been convicted of a felony, is qualified to act as administrator. Although any "qualified" person may act as administrator, the Probate Act establishes a list of "preferences" as follows: Surviving spouse The legatees or person nominated by them (persons named in a Will) The children The list goes on from there.... Read More

Frankly, if your father passed in 1992, it is probably too late to do anything about it unless there are extenuating circumstances that explain why you waited so long to do anything about it. The first thing I would recommend is that you schedule an appointment with an attorney who has a good reputation in your area and who has experience with wills and probate to get an opinion regarding whether you have a claim that can still be asserted. If the answer is yes, I would get a second opinion. I am not saying that there is no way you have a claim that can still be asserted, but there are bound to be significant challenges, including the passage of the claims period, the passage of the statute of limitations, problems of proof, etc. At the same time, you can ask the attorneys what they charge and how much it might cost. There are a range of hourly rates that attorneys charge, depending on years of experience, skill, and other factors.... Read More

As a general proposition, the heirs and legatees (persons named in a Will) are not responsible to pay the debts of the person who dies from their own assets. If the heirs and legatees receive the decedent's (person who died) assets and the debts are not paid, creditors could compel the payment of those debts from the estate of the decedent.... Read More

The answer to your question lies in what his last Will says. The Will he did 15 years ago may still be valid, unless he did a new Will along the way. Whoever finds the Will has an obligation to file it with the court. It then becomes a public document. If you are concerned that his surviving wife may not know where the Will is or may seek to ignore it, you might want to consult with an attorney. Anyone can petition to open a probate estate, though a Will will control how the estate is handled, who will act as the executor and how the estate will be distributed.... Read More

Impossible to say based on the few facts given, but the likelihood of undoing anything that far back is not very great. On the other hand, if the transfer was not in keeping with the Trust document, there might be a triable claim. As for challenging a Will, there must be some basis. The basis cannot be that you do not like it or think it unfair. Will contests based on flaws in the execution or the document are not very common unless the Will was not drafted by an attorney. Even if a Will is drafted by the person who signed it, if the basic testamentary formalities were followed, it will be honored. When a person does a Will, what they want and think is fair is all that matters, even if it does not sit well with people left behind. Will challenges must be based on some failure in the execution or intervening matter that calls into question whether the person who did the Will really intended what was done. Will challenges are commonly based on undue influence or incapacity (the lack of ability to understand).  Successful will challenges usually involve a person who is old, senile, suffering from dementia or memory loss or a person who is otherwise lacking in capacity to understand the significance of what is being done or is easily influenced and manipulated; and their is usually another person who has taken advantage of that lack of capacity or exerted dominance in some way to influence the person to do something that they might not have intended or did not fully understand.   Sometimes litigation over Wills involves the meaning of the Will. If the language is ambiguous and can be taken in more than way, a court may have to decided what is means based on all of the evidence presented. Will contests require litigation in court. There is only a window of time once the Will is filed and a probate estate is open to file a will contest. Will contests can be costly and take a lot of time, as evidence must be gathered, witnesses must be located, the case must be put together and presented to a judge in a trial. This answer is not intended to create an attorney/client relationship or to be taken as specific legal advice in response to your question. It is a very general answer based on general legal principals. Your only way of knowing whether there is any claim to be made regarding the Trust or the Will is to consult with an attorney who can consider all of the evidence you have and ask questions to determine whether you might have a case.... Read More

Without more information, it is hard to say. If she did a will, it would probably with her important papers. If she had a safe deposit box at a bank, maybe it is there. If she used an attorney, it could be at the attorney's office. You can explore the likely places. There is no central repository for wills prepared by the living. Wills of a deceased person or to be filed in the local circuit court clerk's office. When a person does estate planning, one of the considerations to be made is letting people know that you have done so and leaving the original in a place where it is likely to be found. This answer is not intended to create an attorney/client relationship or to be relied upon as specific legal advice for you situation. It is simply a general statement of legal principals that may apply in your situation.... Read More

Generally, in Illinois, a percentage of the estate is not a charge that a court would approve for the handling of a probate estate because it may not reflect the value of the actual services provided. There are a number of different factors that a court will consider in determining what is a reasonable fee, and the size of the estate is not a relevant factor. Time spent, complexity of the matters addressed, issues that have been handled, the years of experience of the attorney and other factors are more relevant. You should ask how many years the attorney has been handling probate matters and how many probate matters the attorney has handled. You should find an attorney with experience who has a good reputation in the community. This answer is not intended to create an attorney/client relationship or to be considered legal advice for your specific situation. The general principals stated may or may not apply in your situation to your specific facts.... Read More

Based on the short description you have given, it appears the two boys named as beneficiaries of the insurance policies will receive the life insurance. Without a will, the remaining assets of the estate will be distributed according to the provisions in the Probate Act. Generally, if there is no living spouse but living children, the assets are split evenly with all of the children. The fact that there are non-probate assets (the life insurance proceeds) does enter into the equation for the distribution of the probate assets (everything else I presume). Whether that was the intention of the person who is deceased, that is the result. Many people put off meeting with an attorney to discuss estate planning; or worse, they make decisions and do things without seeing an attorney thinking that they understand how it all works. There are many factors and many things to take into consideration, including the beneficiaries of life insurance, how assets are owned, and other things that can affect how an estate gets distributed. I have seen many living examples of estates that may or may not have been distributed according to a person's wishes because they did things themselves or simply put off addressing it. Unfortunately, we will never know exactly what they intended since there is no will or trust telling us. This answer is not intended to create an attorney/client relationship and should not be considered legal advice to be applied in the exact situation. It is just a general answer. You should meet with an attorney who can explore all of the facts and give you specific legal advice.... Read More

I am not sure what you mean by a "will according to the law." If your father did not do a Will, he has no Will. If your father resided in the State of Illinois at the time of his death, the Illinois Probate Act dictates how his estate must be handled. If he resided in another state, the laws of that state will apply. Those laws dictate who can administrate his estate, how that is done and who will ultimately receive the benefit of his estate, among other things. In Illinois, his spouse would be given priority in handling his estate if she is willing and able to initiate the probate process. Anyone could conceivably apply to the court for approval to act as the administrator, but priority will be given to people who are willing and able in the order set by statute. If you are interested in doing that or would like to understand how the law applies to your father's estate, you should contact a reputable attorney in your area or in the county in which your father passed. This answer is not intended to create an attorney/client relationship and should not be relied on as legal advice. The answer consists only of general statements. You should meet with an attorney to get specific answers to your questions and advice tailored to the specific situation.... Read More

Dear Illinois, The prices vary by attorney and locale within the state....think lots of experience vs. less experience...think Harvard vs. State......think high rent vs low rent districts....and all of those factors are justifiable to take into account when setting fees.   Typically however, you may pay anywhere from a flat fee of $350.00 to $650.00 for a simple will and $100.00 to $175.00 for a Power of Attorney OR some attorneys charge you for everything by their "rack" rate (hourly).  It really varies by attorney.  I'd recommend you calling around to a few firms to see what's offered and then you'll have a few prices and can determine an average cost....or at least what you're willing to pay.  Best of wishes with everything.... Read More

The Probate Act requires the executor to file the original Will in the local Circuit Court Clerk's office in the County in which the decedent (the person who passed) resided at the time of death. There is no timing requirement for the opening of the probate estate. You will need an attorney to handle the estate so that is the place I would start. You should seek an attorney who has a good reputation in your area. Ask other people for names and get some honest feedback. After you get the names, check out their websites, if they have them. Find out as much as you can. Make sure they list probate as a practice area. If they are listed in Lawyers.com, check out their peer rating and, more importantly, their client rating. If you can find someone with an AV rating, you know they are well thought of by others. an AV rating is difficult to achieve. It usually takes years so you know that person has experience as well. A BV rating is not bad either, and it may mean nothing more than the person is still relatively young and has not built up the kind of reputation that an AV rating indicates. The most important thing is the experience that the clients have. If their clients give them good reviews, then you can be reasonable assured that you are in good hands. This answer is not intended to create an attorney/client relationship or to be considered legal advice. It is a general statement of legal principals. Specific advice should be sought with a local attorney. Kevin G. Drendel   ... Read More

You have not given enough facts for me to answer your question with any degree of specificity. Have you seen the Will? Is there a Will? Was there a probate proceeding? A probate proceeding is a public proceeding. You should be able to go to the local Circuit Court Clerk's office, look at the court file and get copies of what is in it. If there was no probate estate opened, the question would be, "Why not?" It could be that the estate had less than $100,000 in it, in which case it would be considered a "small estate" that is not required to be probated. Even if it was a small estate, the person who handles the administration (usually the executor named in the Will) has a fiduciary obligation to handle it according to the law for the benefit of the named beneficiaries. You are all heirs of your mother, but your mother passed before your grandmother. If your grandmother died without a Will, you would not be considered her heirs; the heirs would be considered your aunts and uncles. If your grandmother had a Will, your right to receive anything depends on what it says. Have you seen the Will? Does the Will provide that you will receive your mother's share if she passes first? If you are a beneficiary of the Will, you all have a legal right to be informed about her estate, but that depends on what the Will says. Wills are required to be filed in the local Circuit Court. They are required to be filed whether a probate estate is opened or not. You should be able to go and get a copy of the Will (if there is one). Did your grandmother tell you or them that they would receive something? Even if she said she was leaving something for you, if she did not provide for it in a Will, it ultimately means nothing. If it was not stated in a Will, you are not legally entitled to it. That is why it is important for people to prepare Wills that state how they want their estates to be distributed. Verbal promises, and even written ones (if they are not prepared in keeping with testamentary formalities) are not legally enforceable. You need to get a copy of the Will. You should try to contact you uncle and ask him for all of the details. If he refuses or fails to do that, or if you do not feel comfortable doing that, I suggest hiring an attorney to send a demand letter. If he stills fails or refuses to respond, he can be taken to court. This answer is not intended to create an attorney/client relationship and is not intended as legal advice for your specific situation. There are not enough facts for me to give you specific legal advice. The answer is a general statement of legal principals. You should retain a local attorney with a good reputation who has experience with probate and Wills to get specific advice and help in your situation. Kevin G. Drendel... Read More

With your father's declination to act, assuming that he is of sound mind and able to understand and communicate is desires, you should be able to file a petition to admit the Will to probate and request the court to issue "letters testatmentary" to you as the executor, which is your authorization to act. Until the letters of office are issued by the court, a person named as executor does not have the authority to do anything other than direct the disposition of remains and burial, pay funeral charges and preserve the estate. (Section 6-14 of the Probate Act). A petition to admit a Will an/or for the issuance of letters testamentary must include all of the information required in Section 6-2 of the Probate Act. There are many things that an executor is obligated to do and procedures an executor is obligated to follow. This answer is not intended to create an attorney/client relationship and is not intended to be legal advice to you in your specific situation. It is a general statement of the law responsive to the few facts you stated and the question you asked. You should consult a local attorney who has a good reputation in your area and who handles probate estates.... Read More

The probate of the estate of a person who passes with a Will or without a Will may be in the court in the county 1) where the decedent has a known place of residence; 2) if no place of residence, in the county in which the greater part of the decedent's real estate is located; or 3) if no residence and no real estate, in the county in which the greater part of the decedent's personal estate is located. (See the Illinois Probate Act Section 5-1).  It sounds to me, with the few facts you have given, including the relatively short time in County B, that county A is the proper county. You will need an attorney to represent the estate anyway so I suggest that you contact an attorney that has a good reputation in your area and who handles probate estates and confirm which county is the proper venue. This answer is not intended and does not create an attorney/client relationship. The answer is just a statement of the general law and may or may not be applicable to your situation, depending what additional facts might exist. You should always consult an attorney and get specific legal advice.... Read More

You question raises more questions: the primary one being - what did your uncle want? Did he leave a Will? If he did not leave a Will, the answers are all in the Illinois Probate Act, which is the default "estate plan" for anyone who has not done a Will. Without a Will, property will be distributed according to the rules of descent and distribution found at Section 2-1 of the Probate Act (755 ILCS 5/2-1). I am assuming that there is no surviving spouse in the picture, and your involvement as a niece or nephew suggests that there are no surviving children. When there is no spouse or descendants, the next line of distribution is parents and sibling (with a double portion to a parent if the other parent has predeceased and the share of a deceased sibling drops down to the siblings descendants). As for the account, your notarized letter will have no effect on the outcome. The key is how the account was set up when the "partner" was added. If she was added "for convenience only," then she has no ownership interest in the account, and she has no claim to the funds today. If she was added as a "joint tenant," then the account is now hers as the surviving joint tenant, and you have no claim in it. This answer is not intended to create an attorney/client relationship. Please understand that the answer provides general statements of the law. Specific facts and circumstances may require a different determination. You should seek the help of local counsel familiar with estates and probate and determine how the estate should be handled and who are the lawful heirs and beneficiaries of the things your uncle left behind.... Read More

Illinois has a custodial care provision in the Probate Code that allows certain relatives who give at least three years of custodial care to a person who passes on to be compensated for the care that was provided. Unfortunately, the custodial care provision only applies to spouses, parents, siblings and children. As of the present date it does not extend to nieces and nephews. A well written law review article was published a few years ago urging the State legislature to extend the classes of people who may be entitled to compensation for custodial care http://www.dcbabrief.org/vol221209art5.html. If any change is made in the future, however, it will not likely be helpful to you. This answer is not intended to create an attorney/client relationship. The answer is meant to express general principals of law only. If you would like a more specific and definitive answer to your question, you should seek the advice of a local attorney.... Read More

Your question begs other questions: Are you named in a Will? Was the Will changed? Has the Will been through the probate process? If a Will is probated in the State of Illinois, all beneficiaries are required to be notified. The fact that you have not gotten any notice leads me to believe that the Will, if there is one, has not been through the probate process. Wills must be filed in the Circuit Court in the county in which the person died. You should check to see if a Will has been filed and get a copy of it. It is possible that the person who died changed his/her Will at some point. Another possibility is that the assets owned by the decedent (person who died) were not "subject to probate". Assets that are not subject to probate include assets held in joint tenancy, assets that are payable on death, assets with a beneficiary designation and assets held in trust. If the assets fit into those categories, they pass outside the Will and are not subject to a probate process. They are "non-probate" assets. Joint tenancy property passes to the surviving joint tenant(s). Assets that are payable on death (POD) pass to the designated payee. Assets with beneficiary designations pass to the designated beneficiaries. None of those types of assets a subject to a Will, and those non-probate assets are not subject to the probate process. If you believe that you were named in the Will and that there were assets subject to the Will/probate, then you should contact an attorney. This answer is not intended to form an attorney/client relationship and is meant only as a general statement of the law. Specific advice and counsel should be sought from a local attorney.... Read More