Attorney Robert J. Kolasa has successfully completed many probates (death & guardianships) in Lake and Cook County over the past 20 years. I am experienced in cutting costs and the attendant “red tape” to efficiently administer these cases.
Probate at Death
When a person living in Illinois passes away with over $100,000 in his or her own name, the decedent’s estate then may be required to go through a court ordered settlement process called “probate.”
(NOTE: In many cases, proper estate planning utilizing funded Living Trusts will eliminate the need for probate proceedings during a client’s life , or at death.)
Probate is generally needed to “unfreeze” assets owned solely in one’s name at death. Probate can be a time-consuming, frustrating, and expensive process. Estate planning during lifetime can avoid guardianship probate, but after death probate is likely needed if assets are titled in the deceased person’s sole name. We strive to demystify and streamline the probate process as much as possible.
Every probate estate in Illinois is unique, but many involve the following steps:
•Filing of a petition with the proper probate court.
•Notice to heirs under the Will or to statutory heirs if no Will exists
•Petition to appoint an Executor or Administrator for the estate.
•Inventory and appraisal of estate assets
•Payment of estate debts to rightful creditors
•Filing of returns and payment of taxes, including estate taxes if applicable
•Sale of certain estate assets
•Accounting to Court and interested parties
•Final distribution of assets to legatees or heirs
The length of time needed to complete the probate of an estate depends on the size and complexity of the estate. While legal representation is not required, it is highly advisable for an Executor or Administrator to secure professional assistance with the estate settlement, to ensure that they meet all their responsibilities.
Probate During Life (Guardianship)
The law presumes that an adult eighteen years of age or older is capable of handling his/her own affairs. A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of (1) mental deterioration, (2) physical incapacity, (3) mental illness, or (4) developmental disability. The disability must prevent the person from making or communicating responsible decisions about his/her personal affairs. A guardian may also be appointed if, because of “gambling, idleness, debauchery, or excessive use of intoxicants or drugs”, a person spends or wastes his/her estate so as to expose himself/herself or his/her family to want or suffering. In either case, guardianship may be necessary to protect the person and to promote the interests of others, such as service providers or creditors.
In Illinois, the only way someone can be a guardian for a person who is eighteen years old or older is to be appointed by the circuit court. A parent’s guardianship over his/her child stops automatically when the child turns eighteen. Before starting a court proceeding, one must obtain a report certifying that the person is disabled and needs a guardian. The report must contain all of the information required by paragraph 11a-9 of the Illinois Probate Act:
- a description of the nature and type of the respondent’s disability, and an assessment of how the disability impacts on the ability of the respondent to make decisions or to function independently;
- an analysis and results of evaluations of the respondents mental and physical condition and, where appropriate, educational condition, adaptive behavior and social skills, which have been preformed within 3 months of the date of the filing of the petition;
- an opinion as to whether guardianship is needed, and the reasons therefore;
- a recommendation as to the most suitable living arrangement and, where appropriate, treatment or habilitation plan for the respondent and the reasons therefore;
- the signatures of all persons who performed the evaluations upon which the report is based, one of whom shall be a licensed physician and a statement of the certification, license, or other credentials that qualify the evaluators who prepared the report.
A person facing a guardianship adjudication has the right to a court appointed attorney and a trial by a jury of six persons. An individual facing a guardianship adjudication also has the right to request an independent medical evaluation, which must be paid from the funds of the alleged person with disabilities.