Probate ensures orderly distribution of assets after one's death

The Madison County Record Apr. 19, 2009, 2:29am

Probate ensures orderly distribution of assets after one's death
When one's loved one dies, there is a procedure in place that helps ensure the orderly distribution of one's assets to the beneficiaries as designated by the Last Will and Testament, or one's legal heirs in the event that no will exists.

The procedure is called probate, and it is a process whereby the court appoints someone to manage the estate as a "personal representative." An "executor" is appointed if there is a will.

When there is no will, the court appoints an "administrator."

The "executor" will have been nominated by the decedent in his or her will. In incidents where there is no will, the court will determine who will act as the "administrator" of the estate, which may be one or more individuals, a bank or a trust company, or a combination thereof.

While an administrator must be a resident of Illinois, an executor must only be a resident of the United States. Each executor or administrator must be approved and officially appointed by the court.

The duties and responsibilities of a personal representative, either an executor or administrator, are defined primarily by the Illinois Probate Act and the Internal Revenue Code. Generally, if the decedent left a will, it is the responsibility of the person in possession of the will to file it with the circuit clerk within 30 days of death.

It is then the responsibility of the person nominated as executor to ask the court to probate the will. It should be noted that the attorney is the person who appears in court to represent his or her client. Also, a will need not be probated in every instance.

Among the personal representative's duties with the court are the following:

  • Publish or provide required legal notices.

  • Prepare an inventory listing real estate and both tangible and intangible personal property.

  • Approve or contest claims filed against the estate. Petition the court as necessary in the management of the estate's assets.

  • File periodic and final accountings reporting receipts, disbursements and distribution.

    The duties as to property are as follows:

  • Collect and inventory all assets of the estate including any that may be held in decedent's safe deposit box.

  • Preserve, manage and insure assets during administration.

  • Take action to manage the decedent's business.

  • Secure valuation and appraisal of assets.

  • Sell property as required to meet the objectives of the estate.

  • Review the decedent's life insurance policies and help the beneficiaries collect them.

  • Consider Social Security and other claims.

  • Determine whether the decedent had any unfulfilled contractual obligations or was the recipient of such obligations by other parties.

  • Determine the nature of joint tenancy assets, if any, and consider their inclusion or taxability within the estate.

  • Arrange for transfer of stocks, bonds, bank accounts and other assets.

  • Distribute the estate in accordance with the will or, if none, to the heirs, as determined by law.

    Finally, there are financial duties which are required. They include:

  • Keep records of all transactions.

  • File or assist in the filing of the decedent's final income tax return.

  • File the necessary income tax returns as fiduciary for income and expenses generated during the course of administration.

  • Review decedent's records to determine whether any gift tax returns were or should have been filed.

  • File federal estate tax return where necessary, making such elections as are appropriate.

  • File necessary state estate tax returns. Provide for payment of all taxes.

  • Provide beneficiaries with appropriate tax information.
    For further information about this or other law-related issues, contact an Illinois State Bar Association member-lawyer in your area or visit

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