Probate is the court-supervised process of legally distributing assets whether the deceased person does or does not have a will. Without any issues, including disgruntled family members, probate can close the estate within 10-12months. However, even with a “simple” estate, probate can take several years.
At Plan Forward Legal, our Chicago estate planning attorney helps clients understand what a will can and cannot do for them. A review of current circumstances and a discussion of future plans can help predict how long a probate might take.
Why Probate Takes Months or Even Years
The Illinois probate timeline is based in part on state statute and in part on how efficiently the executor can complete the process. The Illinois Probate Act prescribes specific time periods for accomplishing certain tasks relating to the probate of a will. We do want to stress the importance of working with a probate lawyer in Chicago or the surrounding area if you’re facing probate now.
When someone dies, anyone in possession of the will has 30 days to file it with the county clerk where the decedent had a known place of residence. The probate court will review the will to confirm its validity, then formally appoint the executor to manage and administer the estate.
Once probate has started, the executor must notify all relevant parties, including known creditors by their main address. Unknown or remaining creditors must be notified via newspaper publication once a week for three consecutive weeks. Creditors then have three months from notice to file claims against the estate.
In the meantime, the executor must inventory and value estate assets. Then pay taxes and debts. The executor will present a final accounting to the court for approval, distribute the residual assets, and close the estate/probate. At any point during the process, issues may arise that delay probate by requiring court resolution before it can proceed.
Factors That Can Affect the Length of Probate
The executor’s performance can have a substantial impact on how quickly probate closes. An executor who fails to fulfill their duties properly can be removed by the probate court in Illinois and held personally liable for financial losses to the estate.
Some common developments that can extend the length of probate include:
Will Contest
“Interested parties”, those with a financial stake in the outcome, are allowed to file a petition with the court contesting the validity of a will within 6 months of its admission to probate. Will contests are often filed by heirs or other potential beneficiaries who are unhappy with the will’s provisions affecting them. However, there must be a valid reason to contest a will.
Legal grounds for contesting wills include:
- The person creating the will lacked the mental capacity to execute it.
- The will was created as the result of manipulation or undue influence.
- The will is a forgery.
- The will was executed as a result of fraud.
- The will was not executed with the proper legal formalities.
Interested parties may also contest the validity of a revocable trust that is to receive a distribution according to a will. They must do so within the same timeframe for contesting the will. A will contestant has the right to a jury trial on the issue of the will’s validity.
Difficulties with Estate Assets
The executor is required to identify, locate, and inventory all property belonging to the estate. This task is more difficult if the property is owned in different states or countries and by multiple parties. Assets need to be valued, and ownership interests may need to be separated. The more and varied the types of property in the estate, the more difficult the executor’s job may be and the longer it may take.
Administrative Errors
When an estate is large and consists of complex assets, the risk of administrative errors by the executor increases. Administrative errors may include failing to locate estate assets, submitting incomplete or inaccurate paperwork, or missing deadlines.
The law holds an executor to a fiduciary standard. The executor must at all times act in the best interests of the estate and the beneficiaries of the will. When administrative errors result in a loss to the estate or its beneficiaries, they may give rise to claims against the executor for breach of fiduciary duty.
Creditors’ Claims
Creditors may file claims against an estate with the court, the executor, or both. When a claim is filed only with an executor, the executor will determine its authenticity. The executor has no duty to file the claim with the court. Executors can then either allow the claim and pay it or notify the creditor that the claim is being disallowed.
A creditor whose claim has been disallowed by the executor has 60 days to file a lawsuit and have the claim’s validity determined by a court. If the creditor does not petition the court within the time deadline, the claim is barred.
How Long is Probate if there is no Will?
Probate without a will can have a similar estate administration timeline to probate with a will. When someone dies without a will or other documents that transfer property at death, probate may be necessary to legally transfer the decedent’s property. An interested party must petition the court to open probate. The court then appoints an administrator to perform the same services as an executor.
After paying all the claims of the estate, the administrator distributes available property according to the state’s intestate succession laws. Intestate beneficiaries can still challenge the proceeding under specific circumstances. Family disputes over assets and distributive shares are not uncommon during an intestate probate.
A Chicago Probate Attorney Can Help Minimize the Time it Takes to Get through Probate
Being responsible for the administration of someone’s estate can be a big job and not one that many people feel competent to handle on their own. An executor is held to a high standard of performance and can be personally liable for costly, albeit unintentional, mistakes.
If you’ve recently learned you are the executor of a will or know you will likely be serving in that capacity at some point in the future, a Chicago probate attorney at Plan Forward Legal can guide you through the process to avoid mistakes and minimize delays.
