What Does – And Doesn’t – Have To Go Through Probate In Illinois?

People often hear the term probate and understand that when someone dies, their assets go through probate court… but there is more to it than that. Probate is the process of closing a deceased person’s estate. This involves the probate courts and the heirs or beneficiaries of the person. The probate courts will review the will to ensure its validity before the process begins. Much of a person’s will focuses on the distribution of their assets after they are gone. In Illinois, most property (but not all) must go through the probate process before the courts will transfer it to the heirs or beneficiaries. In this article, we will discuss what does – and what doesn’t – have to go through probate in Illinois.

What Goes Through Probate In Illinois?

Probate can be a confusing process, especially if you recently lost a loved one and your emotions are in turmoil. It is a common misconception that all assets must pass through probate. But that is not true. Some assets should not be listed in the will and do not have to go through probate to transfer to the heir or beneficiary.  But how do you know what assets pass through probate and what assets do not? This article will give some examples, but we always advise speaking with an attorney when building your estate plan.

Understanding the probate process can help you in many ways.

• If you are building your estate plan
• If you are a beneficiary
• If you are an heir and your loved one did not have a will

A probate attorney can help you every step of the way through the probate process. They can also explain the differences between a will or trust, how to best title your property and what will speed up the probate process for your loved ones.

Some Assets That Go Through Probate

It is common for assets to pass through the Illinois probate courts. If the deceased person did not have a will (dying intestate), the probate courts will distribute the assets according to the intestacy laws.

• Assets and property that are listed in the will. Any property that specifically lists the heir or beneficiary in the will. This may include household goods, personal items and vehicles.
• Assets that require re-titling. Assets such as real estate and other valuable property listed in a will must pass through probate to ensure they are legally transferred to the heir or beneficiary.
• Some properties that are not listed in the will. Perhaps there was a property that was not listed in the will, is not in joint tenancy, does not have a transfer on death or is not listed in a trust and must go through probate. If assets do not have an heir or beneficiary, the probate courts will assign the new ownership.

This is a list of some assets that are subject to the probate process. However, not everything must pass through the Illinois probate courts.

Some Assets That Do Not Go Through Probate

Even with a will, not all property must go through the probate courts in Illinois. This can be because of pre-designation or because the property has an instrument that already names the beneficiary. Since a common Illinois probate process can last 6-12 months, some people choose to make decisions ahead of time that can reduce the probate process time for their loved ones.

Some assets that pass outside of probate are:

• Any assets in a Trust. Some people choose to establish a trust instead of a will. With a trust, all assets are excluded from probate and can be passed directly to the beneficiary.
• Already designated assets. There are some assets that you designate your beneficiaries when you establish the account. You do not want to cause delay and confusion by stating the beneficiary and then also putting it in the will. These can include:
  • Retirement accounts. Accounts such as an IRA and 401(k) have a named beneficiary, and the money is automatically transferred to that beneficiary.
  • Life insurance. Since you named the beneficiary on your life insurance account, it will not need to pass through probate.
  • Annuities. When you opened the annuity funds, you named a beneficiary, and you do not need to do so again in your will.
• Property with Joint Tenancy with Rights of Survivorship. Married couples often place the property in both names but with Joint Tenancy with Rights of Survivorship. When one spouse dies, the property does not have to go through probate; it will automatically pass to the other spouse.
• Pay-on-Death (POD) Accounts. Bank accounts allow you to add a Pay-on-Death beneficiary, who can receive the money without it going through probate.
• Transfer on Death (TOD) Accounts. A TOD instrument allows you to assign a beneficiary to your property. The property will immediately transfer to the named beneficiary without going through the probate process.

As you can see, there are quite a few assets that do not have to go through the Illinois probate courts.

Working With A Probate Lawyer

An experienced probate attorney can help you if you are an heir or beneficiary going through the probate process. A probate attorney can help you with:

• Answering any questions you may have about the Illinois probate process.
• Advocate on someone’s behalf if they need to contest a will or fight someone else who is contesting it.
• Help with any real estate transfers that must go through probate.

Whether you are writing your will, the executor of someone’s will or a beneficiary – having a probate attorney on your side can make a significant difference in your probate process. It is understandable to be confused, but you don’t have to go through this alone.

Oak Brook Probate Attorney

Do you have questions about Illinois probate? Are you confused about what assets must pass through the probate courts and which will not? An experienced probate attorney can advise you on the best options for your situation. Contact the Estate & Probate Legal Group at 630-864-5835. 

Areas We Serve: Cook, DuPage, Kane, Lake, Kendall and Will counties.