In this article, we explain “what types of assets are subject to probate in Illinois” and “what types of assets are not subject to probate in Illinois.” We also answer the question, “how do I collect probate assets in Illinois?”.
What Types of Assets are Subject to Probate in Illinois?
Probate is essentially defined as a legal process through which the court system assists in the distribution of a deceased individual’s (also known as “decedent) estate. If you would like some background information about probate, check out our article about “What is Probate?: Introduction to Probate in Illinois?” However, probate is not always necessary, regardless of whether or not the decedent had a will in place at the time of their death. Assets are subject to probate if the decedent’s estate contains at least one of the following conditions:
- The decedent owned assets in his or her own name only, and those assets are valued at over $100,000, or;
- The decedent owned real estate in his or her own name outside of a trust, which was not owned jointly with “right of survivorship,” meaning that the real estate would pass to the surviving spouse by default. This can also apply to a decedent who invested in ownership of a small business in his or her own name alone.
What Types of Assets are Not Subject to Probate in Illinois?
Items that do not fall into the two categories listed above are not subject to probate. Examples of this include:
- Retirement accounts (such as 401Ks or IRAs) or life insurance policies, as long as a beneficiary has been named;
- Property held in a living trust;
- U.S. savings bonds that are co-owned or registered in pay-upon-death (POD) form
- Pension plan distribution;
- Property owned in joint tenancy with right of survivorship;
- Vehicles that go to immediate family members under state law;
- Wages, salaries, or commissions (up to a certain amount) due the deceased person; and more.
For more information, check out our articles entitled When is Probate Required in Illinois? and Illinois Probate: Does All Property Need to go Through Probate.
How Do I Collect Probate Assets in Illinois?
Probate is not necessarily a quick process. If the decedent had a lot of assets, or if heirs are fighting over property, it can take up to a year to receive assets that are subject to probate. In order to collect your assets, the executor (if there is a will) or administrator (if there is not a will) will have to open a probate case with the court. If there is a will, the court is inclined to appoint the executor named in the will, unless there is clear evidence that the will is invalid. It is then the job of the executor to notify all “interested parties,” such as creditors, potential heirs and family members, to the passing of the decedent. Other responsibilities of the executor include:
- Gather, inventory, and protect the decedent's property;
- Publish notice of the probate case to inform creditors;
- Contact creditors directly; and
- Sell assets if necessary to pay for valid claims, such as funeral expenses
Having a will in place does not necessarily mean the person named in the will can collect that particular asset if it is part of the estate. Sometimes assets have to be liquidated in order to fairly distribute funds amongst the interested parties. Also, the government and creditors will always take what they are owed before the remaining assets can be divided. If you would like to learn about what happens when a will is contested, read our article entitled Illinois Will Contests Explained | Illinois Probate Litigation. Once all debt and taxes are settled, the executor must file a final document accounting for the following:
- All assets;
- Any income that the estate assets generated;
- Distributions that have been made to beneficiaries;
- Amounts paid out for debts and expenses of administration; and
- How the executor intends to distribute the rest of the property.
At this point, if you have not already collected your portion of assets, you will. In order to officially close the estate, the executor must submit a final report with the court, as well as receipts proving the beneficiaries have received their inheritance.
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