Probate is the legal process used to transfer the assets of a deceased individual (the “Decedent”) through the court system. After the payment of all administration expenses, taxes, and creditors’ claims, such assets are transferred from the Decedent’s estate to his or her Legatees in accordance with the Decedent’s Will, or to the Decedent’s Heirs if there is no Will, in accordance with the Illinois Probate Act.
Probate is voluntary and must be requested. A nominated Executor or the Decedent’s Heirs or other interested parties may request probate by filing a probate petition with the court in the county in which the Decedent lived. It is possible for probate to take place in multiple venues for a single Decedent if he or she died owning property individually in more than one state.
Although probate is voluntary, it is often required in order to transfer assets. Effectively, the assets may be “frozen” until an Executor or Administrator is appointed. Once the appropriate representative is appointed, he or she is issued Letters of Office by the probate court. Letters of Office are evidence that the representative has authority to act on behalf of the Decedent’s probate estate and to handle the Decedent’s assets.
Having a Will can make the probate process less onerous and costly, but will not avoid probate. If the Decedent died with a Will, he is said to have died “testate”. Dying without a Will is called dying “intestate”.
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