Probate FAQs

Here are answers to some Probate FAQs – frequently asked questions about probate law, estate planning, and guardianships:

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Is a “simple will” appropriate in most circumstances? A very basic will or a “simple” will may omit very important provisions if it does not provide for alternate beneficiaries, or alternative executors.  A very simple will may neglect to waive the need for surety bond for the executor, or it may fail to give powers to the executor that are not otherwise conferred by state law.  A very simple will often fails to name guardians for minor children, both their person and their estates.  Part of the role of an estate planning attorney is to ask important questions, and to enable the individual and/or couple to plan for contingencies that they have not yet contemplated.

How do I revoke a Power of Attorney? A Power of Attorney can be revoked, but should be revoked in writing with a copy of the revocation given to the former agent, and all banks, financial institutions or other entities in possession of the POA.  If the principal is unable to sign a written revocation, the revocation should be done in the presence of at least two witnesses, who can attest to the revocation.

Does a Power of Attorney expire? A Power of Atttorney can expire by its terms, upon the occurrence of a event, or a date certain.  A Power of Attorney will also expire upon the death of the principal.  A Durable Power of Attorney will survive the incompetence or incapacity of the principal.

How can I avoid probate in Illinois? Avoidance of probate can be accomplished by the execution of a valid pour-over will and revocable trust.  Placing accounts in joint tenancy or payable-on-death to a named beneficiary can also be a method by which probate can be avoided.  Real estate placed in a land trust will also result in the property being passed to descendants outside of probate.

Can a person under guardianship execute a will? In Illinois, a person who has been adjudicated a disabled person CAN execute a will if that individual is found to have testamentary capacity. Additionally, pursuant to 755 ILCS 5/11a- 18, a guardian of a disabled person may petition the court for authority and approval of the creation of a irrevocable or revocable trusts for the ward, or approval of modifications by means of codicil or trust amendment, the terms of the ward’s will or recovable trust, because of changes in applicable tax laws.

How long does it take to administer an estate? Depending on the issues presented, it can take anywhere from 6 months to years to administer an estate.  If all assets are collected, and claims paid, after the claims filing period has expired, the final account can be prepared, the estate closed and distribution made.  If one of the assets of the estate is real estate which needs to be sold in order to pay claims, and make specific bequests, then the period of administration may be significantly longer.  If there is a will contest filed, then the litigation needs to proceed prior to finalizing administration of the estate.  Finally, if beneficiaries or legatees are not in agreement with the final account, then additional time may be required in order to settle controversies prior to closing the estate.

How is property divided if there is no will? If a decedent dies without a will (intestate), then the assets pass by the rules of descent and distribution in that particular jurisdiction.

What happens in an insolvent estate? If there are insufficient assets in a decedent’s estate to pay claims and expenses, then the estate is insolvent.  Documentation of the lack of assets will be need to be given to all creditors of debts held by the decedent individually, and the debts will be extinquished – although in most cases, reluctantly.


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