Probate In Chicago (and elsewhere): A Legal Root Canal
- Who died (the decedent)
- Whether the decedent died with or without a will
- The estimated value and composition of the estate of the decedent
- Who the decedent’s heirs were at death (includes surviving spouse and children); and
- Who is going to be the executor (or, if no will, the administrator)
So long as everything looks to be in order, the probate estate is opened and someone is named executor or administrator. The executor/administrator then has the power to deal with the decedent’s property, distribute assets, deal with creditors and eventually close the estate.
I’ll write more about specific aspects of probate, but probate is (1) expensive and (2) totally avoidable. Oh…and it also is time consuming and causes loved ones to literally be knee-deep and reminded of death for a year or so. Not so good. Here are some horror stories about inadequate estate planning for your reading leisure: http://www.smrslaw.com/articles/2007-02-art1.htm
Dying Without a Will in Chicago (and elsewhere): Not Good
Ahhhh…the Will, the most basic and best known estate planning tool. Used since the dawn of time to pass fiefdoms both large and small to loved ones (or to stick it to bratty kids). Wills are great for a few things. First, entertainment: http://money.howstuffworks.com/personal-finance/financial-planning/will6.htm. But more importantly, a Will can (1) assure desired distribution of property to the decedent’s (dead person’s) intended distributees; and (2) save a lot of time, expense, and trouble.
The former is pretty clear. You write a will to make sure the gold panda locket you got in China goes to your niece. In this respect, the main thing to watch out for is the division of probate property versus non-probate property. Probate property passes through a will…like the golden panda locket or the contents of a safe deposit box that has only the decedent’s name on it. Non-probate property passes via outside agreement, like a house or bank account in joint tenancy, or the assets in an IRA where beneficiary designations have been made.
The latter is clear only to lawyers. Even a basic will can make the probate process much cheaper, less time consuming and less horrible for loved ones of the decedent. How? First, the family can avoid fighting over the golden panda locket (you never knew how many people wanted that thing). A will can “undo” certain default state law rules which require the executor to put up a bond, or require strict court supervision of the estate. Finally, a will can be the decedent’s last statement on who he or she wants as guardian of minor children (and generally a court will respect that statement).
As I’ll write in the future, a will is just a piece of a comprehensive estate plan. But it’s a vital piece if you want your golden panda locket to go to your niece and not someone else who might sell it to Cash 4 Gold.
