Question: “My mother died about 3 weeks ago, and I am the Executor of her estate. How should I proceed in fulfilling my role as Executor of her estate?”
Answer: First, my condolences on your Mother’s death. Since you know that you are the Executor, you should locate the original Last Will, and get a general idea in regard to the amounts of her assets and liabilities. At that point you need to meet with an experienced Probate Attorney in the area your Mother resided to determine the next step. First, you need to understand that Probate and state administration rules are State specific, and accordingly vary from State to State. Since I practice law only in Illinois, the explanations contained herein apply to Illinois cases, but other States have similar procedures. The Probate Attorney you retain should be able to analyze your Mother’s assets and liabilities to determine whether it is necessary or advisable to probate her Estate or whether the matter can be handled by your jurisdiction’s version of a small estates affidavit.
In Illinois, if your Mother’s assets are less than $100,000.00 and do not include real property, then you would be able to avoid probate while still paying her creditors and then distributing the balance pursuant to the terms of her Last Will. If all of your Mother’s assets were held in joint accounts with other individuals, were held in Trust or in accounts with transfer on death provisions, you might not need to probate the estate or complete a small estates affidavit. In that situation you still need to meet with the Probate Attorney, so he can advise you whether those assets are subject to claims of your Mother’s creditors.
If none of the above exceptions are applicable, then your Mother’s estate will probably have to go through the Probate process. Probate is the legal process by which the court system distributes your property, pays your debts, and settles disputes after your death. With the exception of real property, probate generally takes place in the county of the decedent’s residence, at the date of death. The probate process will be different depending upon which State you are located. Since I practice in Illinois
There are two types of probate estates: intestate estates, where the decedent died without a will; and testate estates, where the decedent had a will. These types of estates are handled similarly, but with some fundamental differences.
An intestate estate is opened for a person who dies without a will. In that case, State law controls and determines who is in charge of the estate, which creditors get paid, how much they get paid, in what order they get paid, which heirs receive the decedent’s assets, and in what proportions. A testate estate is one where the decedent died leaving a Last Will and Testament. The person’s Will names the Executor, who is the person the court will appoint to collect the decedent’s assets, pay bills, resolve disputes, and ultimately pay out the assets to the individuals the decedent named in his or her Will.
If your Mother owned real property in more than one State, you will end up having multiple Probates. All of an individual’s assets are generally probated in the Estate of their primary residence, except for Real Property which must be probated in the State where it is located. This is referred to as ancillary probate.
In general, the person seeking to open the estate will file the appropriate petition with the Court in the county of the decedent’s legal residence, along with numerous other legal papers. The petition will be set for hearing before the appropriate court, at which time the Judge will review the documents, determine that the proper individual is bringing the petition, that any surety on any bond required is obtained, and that the decedent’s heirs are properly identified. If everything is in order, the Judge will order the estate open and issue letters of office to the individual bringing the petition.
In Illinois, notices must be sent to all heirs and legatees or, if not, the person bringing the petition must obtain their waiver and consent to probate and the appointment of the administrator or executor. In addition, notice of the opening of the estate must be given to the public so that decedent’s creditors may make their claims against the estate. The opening of the estate and the publishing of the notice begins the six month claims period, in which creditors must file their claims against the estate or be barred forever from asserting said claims.
The personal representative must do an inventory of the decedent’s assets, and keep track of records of all the transactions of the estate. A personal representative will prepare inventories, accountings and reports to present to the heirs, legatees and/or the court, depending upon the type of probate proceedings. A personal representative will also be responsible for filing the appropriate taxes for the estate.
After all claims are paid, all disputes resolved, and the inventory and the accounting are complete, the personal representative can distribute the estate. The estate will be distribute in conformity with the plan laid out in decedent’s will in testate proceedings, or as provided by State statute in intestate proceedings. The personal representative may be responsible for funding any testate trusts, including any trusts for the decedent’s children.
This is meant only as a general explanation of the process of handling someone’s estate after their death. There are many very complex variations which can occur in any Estate matter and therefore it is essential that you obtain State specific legal advice from an experienced Probate Attorney prior to taking any actions in regard to your Mother’s Estate.
James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois 60004
Member of the national ElderCare Matters Alliance, Illinois chapter
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