Quite often a good friend or member of your family will have a will or trust drawn up and ask you to act as the executor or trustee. You may feel honored and compelled to accept this office.
This article is intended to provided a very basic overview of the estate administration process: gathering of estate data; payment of debts, expenses and taxes; and the distribution of the estate in accordance with the provisions left behind by the deceased. This article is not intended to provide legal advice.
As the personal representative, you are primarily responsible for settling the affairs of the decedent.
There is a host of concepts and terminology used in this process, and some of it may be new to you. Here’s a short primer on what you can expect:
“Probate” refers to a series of procedures by which a state or county government attempts to ensure that the debts, taxes and expenses of the decedent will be paid, and that any remaining assets will be distributed to those people that are legally entitled to such assets as heirs or legatees. Probate usually takes place in a Probate Court in the county in which the decedent resided.
The term “executor” (with a will) or “administrator” (without a will) means one who performs or carries out some act. For example, a person named by a testator to carry out the provisions in a testator’s will is the executor.
A “trustee” is one that, having legal title to property, holds it in a trust for the benefit of another and has a fiduciary duty to that beneficiary. A “successor trustee” is a trustee that succeeds an earlier trustee, as provided in the trust agreement.
“Fiduciary” is defined as “one who owes to another the duties of good faith, trust, confidence and candor.” It is one who must exercise a high standard of care in managing another’s property.
Having defined probate above, the purpose of post-death probate proceedings is to provide a judicial forum in which: (1) the rights of an estate’s beneficiaries are protected by a court; (2) claims against the decedent’s estate are barred if not timely filed; and (3) the right to contest the decedent’s will is barred if a will contest is not timely filed.
Non-probate assets are those types of assets that generally pass to certain persons without the need to seek the assistance of the court, either because of how they are titled or because they have a beneficiary designation. Examples of non-probate assets are as follows:
* Pay-on-death accounts (POD)
* Transfer-on-death accounts (TOD)
* Joint tenancy property
* Life insurance policies
* Land trust agreements
Probate assets consist of those assets that are subject to the probate court because the assets were in the decedent’s name alone with no beneficiary designation. One exception to probate is through the usage of the small estate affidavit if less than $100,000 of probate assets which are constituted by personal property, but not real estate, exist.
Taxable assets are those that are determined to be taxable for federal estate tax purposes under the Internal Revenue Code. This is governed by federal tax law and not Illinois property law. W