When it comes to the financial considerations at hand when a loved one passes away, one of the key questions that often arises is whether probate is necessary. In Illinois, the probate process is a legal procedure used to manage and distribute a deceased person’s estate. This article outlines the factors to consider when determining if probate is needed in Illinois.

What Is Probate?

Probate is the legal process through which a deceased person’s assets are gathered, bills are paid, and the estate is ultimately distributed to the people who are legally entitled to inherit. The court oversees this process. If the deceased had a valid will, the will dictates who should be in charge and who inherits. If there is no will, the court decides who will be the legal representative and follows Illinois intestacy laws to determine how the estate should be divided.

When Probate Is Required in Illinois

Not every estate requires probate. In Illinois, the need for probate largely depends on the type and value of the assets left behind. Here are the main factors to consider:

1. The Value of the Estate

In Illinois, probate is generally required if the total value of the deceased person’s estate exceeds $100,000 or the deceased was an owner of Illinois real estate. The $100,000 threshold includes the value of all assets owned by the decedent at the time of their death, excluding certain assets that are otherwise provided for (which are discussed below). If the estate is valued at less than $100,000, probate may not be necessary, and a small estate affidavit (a straightforward out of court process) can often be used instead.

2. The Type of Assets

Not all assets require probate. The following are considered “non-probate” assets, meaning they can be transferred directly to beneficiaries without going through probate. Such assets are not included in the value of the decedent’s estate for the purposes of determining whether probate is necessary and the probate process does not govern who inherits these assets. These assets include:

• Jointly Owned Property (or Tenants by the Entirety): If the deceased owned property jointly with someone else, such as a spouse, with the right of survivorship, the property typically passes directly to the surviving co-owner without the need for probate. The same applies to real estate held with a spouse as tenants by the entirety.
• Assets with Designated Beneficiaries: Life insurance policies, retirement accounts (like 401(k)s or IRAs), bank accounts with payable-on-death (POD) or transfer-on-death (TOD) designations, and real estate with a recorded transfer on death instrument (TODI) usually pass directly to the named beneficiaries without going through probate.
• Trust Assets: If the decedent placed assets into a revocable living trust (or other types of trust vehicles), those assets do not need to go through probate. The trust document dictates how the assets should be distributed, and the trustee can manage the distribution without court involvement.

If the estate primarily consists of non-probate assets, probate may not be required.

3. Presence of Real Estate

If the decedent owned real estate solely in their name, probate is often required, especially if the property is not held in joint tenancy or within a trust. Real estate cannot be transferred to the heirs or sold without going through probate unless it falls under certain exceptions, such as small estates or the property being titled in a way that avoids probate (like through a TOD deed).

When Probate May Not Be Required

In certain situations, probate can be avoided or simplified:

• Small Estate Affidavit: If the estate is valued under $100,000 and does not include real estate, the beneficiaries can use a small estate affidavit to claim their inheritance without going through probate. This affidavit allows the transfer of assets without court involvement, saving time and legal fees.
• Bond in Lieu of Probate: Where the estate only consists of real estate, there are no debts, and inheritance is very simple (such as an only child inheriting from a parent) area title companies offer an alterative to probate called a bond in lieu of probate. This is a great alternative to probate in some very specific circumstances but is not a good choice for many other situations. Its best to discuss with an attorney to decide if it is a good option.

Conclusion

Determining whether probate is necessary in Illinois involves evaluating the value and types of assets, the presence of beneficiary designations, discussions of potential liabilities of the deceased, the presence of real estate, and other factors. While probate is often required for estates valued over $100,000 or those that include real estate, one should not assume that all estates must be probated. Consulting with an experienced estate attorney can help clarify the best approach for your situation, ensuring that your loved one’s estate is handled practically, efficiently, and in accordance with Illinois law.

Call Our DuPage County Probate Lawyers For A Consultation

Navigating probate law can be challenging, especially with new changes on the horizon. If you’re looking to understand how these updates affect your estate plans or need guidance in guardianship matters, don’t hesitate to reach out. Contact our DuPage County probate lawyers at SBK Law Group by calling 630-427-4407 to schedule a consultation. Our knowledgeable attorneys are here to ensure that your estate planning is robust, compliant, and tailored to your needs.