Illinois Probate Legal Questions

You do not indicate if your father is alive or deceased.  Unless he is deceased, there is no requirement that your sister produce the will.  Upon his death, the Probate Statute (755 ILCS 5/6-1) states any person who has the testator's will in their possession has a duty to file it with the clerk of the court of the proper county (meaning the county your father resided in or held real estate in).  The statute further states, if anyone willfully secretes, alters or destroys the will for the period of 30 days after the death of the testator is known to him/her, the person if convicted of such will be sentenced as a Class 3 felony.  If your sister has secreted the will, you should file a report with your county sheriff.  Hopes this helps.... Read More

Use of the small estate affidavit requires that the entire estate be under $100,000.00 AND that there be NO REAL ESTATE involved. Additional requirements are:  Probate proceedings have not taken place and are not contemplated; All funeral expenses are paid; No known unpaid creditors or contested claims against decedent (your dad herein) and no will was left or if one was left, it has been filed w/the Clerk of the Circuit court.  Because there is real estate involved a small estate affidavit is not the appropriate vehicle to use...even though the total amount of the estate (under $100,000.00) meets the threshold criteria for the small estate affidavit.  Probate court, although costly, maybe your best alternative (but see last paragraph below).  The probate lawyer will make sure notice of the probated estate is published so that the estranged child and any unknown creditors are provided notice.  You did not state definitely what you all wanted to do with the house, so I will give you two possibilities:  1) If you sale the house, the proceeds - after payment to creditors - will be split between remaining heirs.  The estranged child's portion will be deposited by the probate attorney with the Cook County Treasurer and held with his name on it for up to 20 years; 2) If you retain the house, during the probate proceedings it will be retitled divided equally between all heirs.  So if there are 3 children, you'll each on a third. If one of you wishes to own it, you'll have to buy out the other heirs if they are willing to sale. If whomever paid the funeral expenses desires to be reimbursed, he/she will have to file a claim against the estate to be repaid.  Funeral expenses are considered first class claims and thus they are top priority.  This amount due would probably come right off the top of the $6000.00 in the bank.....after attorney's fees of course. There does exist a possibility of avoiding Probate if you all can remove the  of the real estate from the estate with use of a "bond in lieu of probate" and THEN open a small estate affidavit to collect the $6000.00 if you meet the remaining criteria (exclude the real estate) for small estate affidavits.  Consult with a local Probate attorney for more on use of the bond in lieu of probate. Hope this helps and my best to you.    ... Read More

I am sorry for your loss. I am a California attorney so my answer is based on my knowledge of California probate and estate laws. However, I will try to give you a general answer. I am assuming you are saying that no will has been filed.  Assuming no will has been filed then typically the laws of intestacy take over. That is the laws for when there is no will.   Who takes, in that case, depends on what family members are alive and if your dad was married when he died. For example, in California if he was married his wife would be entitled to a percentage of the estate. It would be different for community and separate property and also vary depending on if dad had one child or no children. On the other hand if your dad had a will then that would speak as to what you get. Assuming there was no undue influence, fraud, mistake, etc... in making the will then it would be a valid legal document. Likewise, if your dad had life insurance or retirement death benefits then the named beneficiary on those assets would receive them. I hope this helps. In short, it's impossible to answer your questions specifically without a lot more information! Good luck to you.... Read More

I practice in Ohio, so I cannot give you specific information about your rights as next of kin in California or Illinois. I recommend however, that you contact a lawyer in California to discuss your rights. If your uncle died in California and his property was held there, this matter will need to be addressed in California. Contact a lawyer in or near the county where your uncle lived, and explain your situation. That attorney can help you find out whether or not there is a newer will, and can help you decide if you need to file the will you have in probate court.... Read More