Many families choose to draft and sign a Will because they want to appoint guardians for their minor or disabled children and choose executors to wind up their affairs. However, one of the biggest misconceptions of why people draft a Will is that a Will avoids probate. To be clear, a Will does not avoid probate. Having a valid Will helps the probate process proceed in a more organized manner as discussed in Part 1 of this Article, but you will still be under court supervision for the opening and closing of your estate and the gathering and administering of your assets.
Generally speaking, if not complex or contested, a probate proceeding in Illinois lasts 9-12 months or longer. This is because there is a set timeline of procedures. First, the Will must be filed with the County; then the Executor has 30 days to present the Will; then within two weeks the Executor must send notice to all named heirs and those who might inherit if the Will is proved invalid; then a claims notice must be filed for three consecutive weeks to notify any creditors who then have 6 months to file a claim against the estate; then the assets can be distributed. During this process, the executor also gathers assets; pays expenses; pays taxes; and performs accountings. If this process runs smoothly, that is already 9 months of court appearances and numerous documents to prepare. The worst part, though, is your family has to wait to receive your assets since the assets can’t be distributed until the set procedure takes place.
Also, it is calculated that on average, due to lawyers’ fees, court fees, etc., that probate costs 5-6% of your gross estate. Your gross estate is everything you own, with a few exceptions. It includes things such as property you own and life insurance. So, if you have a $200,000 estate, that’s $10,000 for probate costs!
So, how can you avoid probate? One way is to have a revocable living trust with your Will. The revocable living trust allows the gathering and distributing of assets without continual court appearances and court supervision which allows your heirs to receive their assets quicker and not as much money spent on court and attorney fees.
Stay tuned for Part 3 – “What is a Revocable Living Trust and what are the Benefits?”
Dee Arnold – WillCounsel Attorney