The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
I know that one is required to file “Probate” when a spouse dies, but I don’t know what it is exactly. How does one go about filing probate?
When someone dies, they leave an estate that must be settled. That means collecting the person’s property, paying their debts, and distributing what’s left over. The distribution can be directed by a valid will, or, if there’s no will, by Illinois inheritance rules. A valid will must be filed, but it doesn’t require a probate case. It can simply be filed at the courthouse, as a public record.
Some things pass automatically to other people according to law, and never go into the estate. For example, real estate or bank accounts held in joint tenancy pass directly to the surviving joint tenants, and life insurance proceeds go directly to the beneficiaries. Things that aren’t part of the deceased person’s estate don’t have to be handled in settling their estate.
Probate is one way to settle an estate when someone dies, but it's not the only way. And it's not always required. Illinois law permits a simplified procedure for handling small estates that doesn't go through regular probate procedures.
When an estate contains less than $100,000 in total assets, with no land, it’s considered a small estate, and can be settled using Illinois small estate procedures. An affidavit summarizing the person’s estate, and how it should be distributed, is filled out and notarized. The affidavit is often coupled with a copy of the death certificate. The affidavit can then be used to complete the distribution of property, without filing a probate case in court.
If you can’t or don’t want to use the small estate procedures, you’ve got two types of probate to choose from: limited or full supervision. With limited supervision, a probate case is opened in court, but the judge simply reviews and approves the final accounting that’s filed by the estate administrator. With full supervision, the judge takes a more active role in the actual administration of the estate. In either case, the judge issues “letters of office” making someone the legal representative of the estate.
Full supervision is what many people incorrectly think happens with all estates, and what leads to the fear that things will get tied up in probate. But full supervision isn’t necessary unless there’re special twists, like filing lawsuits on behalf of the deceased, or things that people may fight over. Most estates, especially small ones, won’t ever require full supervision in probate court.