PROBATE AND GUARDIANSHIPS
What is Probate?
Probate is a legal process established by the state legislature to provide a procedure to transfer the ownership of property to the appropriate beneficiaries and settle the debts and financial affairs of a deceased person. In the past the probate procedure tended to be overly complex and costly. Today, the process has been simplified and the costs reduced for those individuals who need to use it.
In Illinois, estates that do not exceed $100,000.00 can be handled without a formal court procedure through the use of a small estate affidavit. For larger estates which must be probated, there are simplified procedures so that the estate can be administered without court supervision. This allows the executor to pay the bills, sell the real estate or other investments, and take many other actions which are appropriate and necessary without asking permission of the court each time a decision needs to be made.
Supervised administration of an estate is still available for complex estates or estates in which there is a controversy. However, the norm for probating estates today is to keep the process as simple as possible. If the estate must be probated, it must first be determined whether or not there is a will. A will normally names an executor who will usually be appointed to manage the estate. If there is not a will, state law provides for the appointment of an administrator who will have the same responsibilities of an executor, but may not have all the authority given to an executor in a will and so will be required to go to court more frequently to obtain approval for his actions.
The executor or administrator gathers together all of the assets of the estate, pays all properly tendered bills and once all of the bills and expenses of the estate have been paid, distributes the assets of the estate to the beneficiaries after providing an accounting of his actions to the beneficiaries. An executor or an administrator is entitled to be paid by the estate.
The probate process is not as complex or difficult as some people say that it is. I have been helping my clients probate estates for many years and my goal is to help my clients to make intelligent choices to fairly and expediently conclude the financial affairs of someone who has passed away. If you have any questions or concerns about the process, please contact me.
What is a Guardian?
How does one protect the legal rights of the young who are not legally of age; the elderly who are unable to make decisions any longer or are too ill to make decisions; or the young and old who have limited mental capacity? Guardianships are one answer. By family or friends properly utilizing a guardianship, people such as these can be protected from inappropriate living conditions as well as the loss of their financial resource at the hands of unscrupulous individuals.
Through the legal process of establishing a guardianship, a Court reviews the physical, mental and financial status of a person and if it finds that an individual needs help, it will appoint an appropriately qualified person to make those decisions such a disabled person would otherwise make for themselves. Guardians are given authority by the Courts to make such decisions, but the Court retains supervision of the guardian who is expected to act in the best interest of the disabled person and provide periodic reports to the Court.
Guardianships can be used to protect the rights of minors who lose their parents or who are injured in an accident. They can be invaluable in allowing the elderly to continue to live their lives in security without fear of overreaching by others. Needless to say, guardianships are also invaluable for those who are developmentally disabled from birth.
Guardians may be temporary or permanent. Their powers may be limited to a certain specific matter, limited to a category of activities or unlimited as to the personal and fiscal needs of an individual. Judges are required to take into consideration the needs of the disabled person when determining how much authority to give a guardian.
Whatever the problems of your loved one, a properly created guardianship can help your family and I can work with you to determine the needs of your loved one and implement a plan to protect them and provide for their needs. In doing so, I will provide you a clear roadmap of the process and how you and your loved one can utilize the process for the benefit of your loved one.
If you have questions about the application of the law in a particular case with regard to Probate or a Guardianship, consult Attorney Mark E. Heimsoth. The law is constantly changing and it is important that each case be reviewed individually.