Howard & Hardyman LLP

What is probate?

For those in Illinois taking the responsible step of writing a will, the term "probate" can be confusing. According to FindLaw, probate refers to the process of legally transferring your property after you die. However, the term can also refer to the court in which this process takes place. The purpose of probate is to ensure the validity of your will, settle any debts you leave behind and distribute your assets and property according to your wishes in accordance with the law. Because probate can be an expensive and time-consuming process, however, many people try to avoid it. 

The probate process includes several basic steps. First, the executor or court-appointed administrator of your estate collects your property, including any dividends or income. Then the executor or administrator pays any taxes, debts or claims your estate owes. In most cases, the executor or administrator of your estate will then transfer your property in the manner you have stipulated.

Nevertheless, there are two potential situations that may prevent your heirs from receiving your property according to the wishes you have expressed in your will. The court may override your desired distribution of property if your wishes are not compliant with applicable state laws. Furthermore, if your heirs believe that your will is invalid, they can contest it. For example, your heirs may contest your will if they believe that you suffered insufficient mental capacity when you made it or that you were improperly influenced. A process of settling any disputes must take place before distribution of property can commence. Fortunately, it is relatively rare for heirs to contest the probate process.

Though it can be difficult, especially during the emotional period following the death of a loved one, probate is a process intended to protect everyone involved. 

The information in this article is not intended as legal advice but provided for educational purposes only.

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  • Illinois State Bar Association
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