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What does it mean to “go through probate”?

| Apr 16, 2021 | Divorce |

“Going through probate” is a phrase that seems simultaneously common in its usage and ambiguous in its meaning. Most people recognize it as having something to do with a deceased person’s property and financial affairs, but beyond that, might have only a vague sense of the specifics.

If that’s about as much as you know about probate, then you’re not alone. Here’s a quick explanation of the probate process to help fill in the details.

Probate is a court-supervised process for managing someone’s property and affairs.

To start, probate is a legal process overseen by a court, which in Illinois is known as a probate court. Two probate courts operate in the Naperville area: the 18th Judicial Circuit Probate Court in DuPage County, and the 12th Judicial Circuit Probate Court in Will County.

Probate courts in Illinois handle three broad types of cases:

  • Administering the property of a deceased person;
  • Administering the personal and financial affairs of person who is incapable of managing them independently due to a disability or impairment; and
  • Overseeing the appointment and conduct of a guardian who supervises the care, education, and financial affairs of a minor.

Any of these cases technically qualifies as a probate matter in Illinois. However, in everyday speech, the phrase “going through probate” usually only refers to the process of administering the property of a deceased person.

Probate wraps up deceased people’s financial affairs and distributes their property.

A person who dies often leaves behind a collection of assets (money, investments, real estate, personal property, etc.) and liabilities (loan balances, money owed for services, contractual payment obligations, etc.).

In the most general sense, the purpose of the probate process is to gather the deceased person’s assets, to use them to pay the deceased person’s liabilities, and to distribute what’s left according to instructions the deceased person left in a will or, when no will exists, to the provisions of Illinois probate law.

The probate process starts when an attorney for an interested party – usually a family member or representative of the deceased – files a written petition in the probate court asking the court to open an estate, which is legal terminology for the body of rights and interests left behind by the deceased person.

In opening an estate, the probate court appoints a person, called an executor (when a will exists) or administrator (when no will exists) who will have authority to:

  • Gather and take legal control of the deceased person’s assets and accounts;
  • Notify the deceased person’s creditors of the death and their right to seek payment of outstanding debts;
  • Pay valid creditor claims filed with the estate within a fixed time period; and
  • Distribute the deceased person’s remaining property to the deceased person’s heirs and beneficiaries in accordance with a will or applicable law.

Executors/administrators normally hire probate attorneys to assist them in their duties, which often include filing reports and other paperwork in the probate court reporting on the status of the process, or seeking resolution of any disputes that arise. The assets of the estate usually pay for the cost of this attorney.

Once the executor/administrator has fulfilled the basic mission of gathering assets, paying liabilities, and distributing property, the probate court closes the estate. From start-to-finish, the probate process in Illinois typically lasts about a year.

And that, in a nutshell, is what it means to “go through probate”.