Death is a universal experience. We will all experience the death of a loved one. The feelings of grief and loss are also universal when loved ones die. The feelings will come in waves, sometimes swamping you with emotion while other times the emotion will be calmer.
Unfortunately, this period of grief and loss comes with unfamiliar paperwork. In our lives, we create a lot of paperwork. When we, die there is more paperwork to close out a person’s life than we would expect—and it can be overwhelming and confusing.
I have stopped saying the phrase “the only things certain in life are death and taxes” and started saying “the only things certain in life are death and paperwork.” Fewer than 1% of Illinois estates pay the Illinois estate tax; therefore, it’s not the taxman most of us need to contend with after a loved one dies. Instead, the spouse, loved one, executor or trustee will find themselves closing bank accounts, retirement accounts, social media accounts, insurance accounts, credit card accounts, medical bills, the disbursement and sale of real estate and personal property and more.
Some of the paperwork you encounter will be through Probate court. If your loved one had a will and no other legal documents transferring assets on death, then you will be in Probate court. Some people find the rules and procedures of probate court comforting. For many of us, the rules, procedures, and costs will seem Kakfaesque in their complexity.
What is probate?
Please note, I am not a lawyer. I am writing this column from a layman’s perspective. In my own non-legalese, probate as a term either refers to the process of executing a will or the probate court where that may happen. Probate court is a special state court, located in your county, which specifically deals with wills and estates. Probate court is a way to settle a person’s estate through established state law.
If you or a loved one is in the Probate court process now or planning an estate, here are a few things to know about the process.
First, there are some good reasons to use the probate process: naming guardians for children, settling debts within a shorter timeframe than other processes and providing a forum for legal disputes if any arise.
Second, the probate court process takes six months or longer. For an uncontested estate, the Probate process can take from six months to a year. If the estate is more complicated due to estate taxes, lawsuits, and other reasons than it can take years to resolve an estate.
Third, choose the right person to be the executor of your will. In the probate process, the executor will process all the claims on the estate—federal and state taxes, credit cards, banks, insurance companies, medical bills and all other bills and claims filed against the estate. Choosing the right person can significantly reduce the amount of time your estate is in the probate process.
Fourth, your beneficiaries are paid last in probate court, after all other costs. Probate court also follows laws prioritizing the payment of claims and debts. The first claims paid against the estate are the administrative costs of the estate which include legal fees, executor fees and court costs. The second claims paid are funeral expenses. Third comes the statutory payouts to the surviving spouse and children. Please note that these payments are set by law and are not the same as any assets left to the spouse or dependent children in a will.
Next comes the final debts and taxes owed by the individual. This is where the executor’s job is crucial because they will evaluate all the claims against the estate, organize the claims and pay your debts. The probate process sets a timeframe for creditors to file claims against the estate. A well-organized executor will speed the payments along, ensuring your beneficiaries receive their inheritance in a timely manner.
Finally, after all those items are paid, the beneficiaries receive their inheritance.
The probate process can be complex and is not meant for everyone. For your specific situation, speak to a wills and estates attorney because each person’s and family’s situation is different.
John Kohlhepp is the owner of A Secure Plan, LLC, an End-of-Life Planning and Death AfterCare company. After the death of his mother, John chose a new career path to help people and families making end-of-life plans and completing the paperwork after a loved one dies. Previously, John worked in progressive politics for labor unions, immigrant rights, and marriage equality.