Do You Need a Lawyer to Settle an Estate?

While it’s not legally required to have a lawyer’s assistance when settling an estate, hiring one can provide many benefits to the grieving family. Going through the probate process requires a lot of paperwork and special requirements, especially if there are any disagreements among the heirs. In complex estates, serving as your loved one’s personal representative can become a full-time job, on top of dealing with your emotions and daily demands.

In this post, a Chicago probate attorney from Plan Forward Legal discusses whether you need a lawyer to settle an estate, what to do if there’s no will, and how a legal professional can streamline the probate process for you.

An estate planning attorney in Chicago (or wherever you happen to be located) can help you understand the next steps in settling an estate. You shouldn’t try to tackle this alone, especially if this isn’t something you deal with every day.

The Basics of Settling an Estate in Illinois

When someone dies, the state government has a formal process for assessing what they owned, how it should be transferred, and whether any taxes are due. Ideally, your loved one left a will explaining their wishes or even created a full estate plan to divide assets appropriately among their heirs. They may have put some items into a trust for certain beneficiaries, protecting those assets from probate in many cases.

Your first task is to decide who will handle the estate affairs and collect anything you can find detailing what your family member held, including:

Real estate deeds
Vehicle titles or loan documents
Mortgage statements
Bank account statements
Retirement account statements
Life insurance policies
Credit card bills
Notes indicating who should receive personal items, such as jewelry or clothing

The person who will manage the estate is the personal representative or executor, and they must file a petition with the probate court for the county where the person died. They will receive documentation authorizing them to take control of all assets, pay debts, and distribute them.

No Will – Now What?

If your loved one died without leaving a will (intestate), the Illinois Probate Act of 1975 (755 ILCS 5/) requires all assets to go through probate. Someone must petition the court to be the personal representative, then complete the probate steps to pay debts and taxes before distributing anything to the heirs.

How the Probate Process Works

If you are named as the personal representative, you will have to perform the following tasks during the probate process:

Request death certificates and supply one to the probate court.
File an inventory of all assets and liabilities.
Submit the will (if there is one) and any additional estate documentation.
Prepare a final tax return for the deceased and a return for the estate.
Maintain all properties during the probate process and pay taxes.
Assess creditor claims against the estate and pay valid ones.
Sell assets as required to pay debts.
Distribute assets to beneficiaries.
Close the estate.

These are relatively ordinary, if demanding, jobs, but if there are disputes among the heirs or from creditors, it’s easy to end up in litigation against the estate. Suppose you inherit your grandmother’s house when she dies, but her siblings insist they should have received it. Without an attorney, you could be ill-prepared to face the heated family dynamics that complicate settling the estate.

How a Lawyer Can Make Probate and Estate Affairs Easier for You

By now, you’re getting the idea that it would be useful to have an experienced and trained legal professional on your side when trying to settle an estate. Here are some of the services a probate lawyer can perform:

Filing the correct paperwork: There are numerous probate documents in Illinois, dealing with how to correctly distribute businesses, property, money, and other assets when someone dies. Your lawyer can verify which ones you need and help you submit them.
Validating creditor claims: People come out of the woodwork demanding money when someone dies, but only some creditors have rights against the estate. An attorney can guide you through identifying actual debts and securing paperwork confirming the payment.
Valuing property, sales, and paying taxes: Your lawyer can connect you with valuation experts to determine what an asset is worth, agents to sell an asset, and accountants to prepare the necessary tax forms.
Transferring property: To legally pass property, you will complete paperwork and file it with the county clerk where the property is located.
Meeting your fiduciary duty: If you’re the personal representative, you have a fiduciary duty to serve the best interests of the estate and its beneficiaries before anything else, even if you are one of the heirs. Otherwise, family members could petition for your removal or to dispute the distribution.
Knowing when you can bypass probate: Some assets and some estates can avoid probate, and your attorney can help you understand the difference.
Managing family disputes: Your attorney may be able to mediate conversations with beneficiaries to keep things logical instead of emotional.

So, do you need a lawyer for probate in Chicago? The answer is probably yes, unless the estate is very simple.

When You May Not Need a Lawyer to Settle an Estate

There are a few times when you could manage an estate on your own without an attorney or going through probate. These include the following:

When the estate assets are worth less than $100,000, and there aren’t any disputes among the heirs, you could qualify for a Small Estate Affidavit. It gives you the power to distribute assets without probate.
All the assets were held in joint tenancy with rights of survivorship with a spouse or civil partner. This applies to bank and investment accounts, as well as real estate.
Any asset with a designated beneficiary, such as retirement accounts, life insurance policies, and payable-on-death (POD) accounts, will go directly to the recipient without probate.
If the deceased filed a Transfer on Death Instrument before passing away, the property transfers to the named beneficiary without the need for probate.
Any assets placed in an irrevocable living trust created while the person was alive become property of the trust, meaning they do not pass through probate since they were not legally owned by the deceased.

Be careful handling trusts, since while irrevocable trusts don’t go through probate, testamentary trusts do. A testamentary trust is created in a will and activated upon the person’s death, so everything in it remains part of the estate and is subject to the probate process.

A Lawyer Can Help You Decide Whether You Need Help Settling an Estate

It’s common to spend most of your life without encountering the volume of paperwork and demands that surround a person’s death and estate. Most of us aren’t prepared for everything that’s required, and it can be helpful to arrange a consultation with a probate attorney to discuss what you’re facing and how you can manage it.

At Plan Forward Legal, we are dedicated to providing the services you need without upselling you into something you don’t. To learn more, contact us and get started today.