Below are my responses to some frequently asked questions regarding estate and trust administration.

1. What is probate and how does it work?

Probate is a court process for wrapping up a deceased person's affairs. The probate process will vary from state to state; the following discussion centers on Illinois law.

If the person died with a valid will, the court will appoint the executor named in the will to take care of the deceased person's affairs. The executor will collect the decedent's probate property, use it to pay the decedent's bills, and then distribute whatever remains as provided in the will. (For a discussion of what constitutes "probate property," please see question 3 on my Estate Planning page.)

If the person died without having a valid will, the court will appoint a person called an "administrator" to take care of the deceased person's affairs. Like an executor, the administrator will collect the decedent's probate property and use it to pay the decedent's bills. However, the administrator will then distribute the decedent's remaining probate property as provided under Illinois law. Who receives this property depends on the identity of the decedent's relatives. For instance, under Illinois law, if a woman dies with a husband and two children but no will, her husband would receive 1/2 of her probate property, and each child would receive 1/4 of her probate property. Such a distribution may or may not be what the decedent would have wanted; that's one reason why it is so important to have a will.

2. Is probate always needed?

No. In Illinois, probate is only needed if the decedent owned more than $100,000 in probate property at his or her death. Putting most or all of a person's probate property into a living trust is one way to turn this property into non-probate property, thereby avoiding the need for probate. This is one of the advantages of having a living trust (other advantages are discussed in question 5 on my Estate Planning page). While probate in Illinois is a relatively quick and inexpensive procedure, avoiding probate is generally a good idea, especially if the decedent owned real estate in more than one state (a fact which might otherwise require multiple probate proceedings).

3. How is a living trust administered upon death?

When a person dies owning property in a living trust, the property is administered as provided in the trust document. If the person was acting as trustee, his or her successor will take over this job. The successor trustee will then distribute the trust property, or continue to hold it in trust, as provided in the trust document. No court proceeding is necessary for the administration of a living trust upon the death of its creator. (You can learn more about trusts by reading question 4 on my Estate Planning page.)

If you would like to set up a meeting to discuss the administration of a deceased person's estate or trust, please contact me.

For more information on this area of law, you may wish to visit my "Articles" page.