Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com

Q: What is probate? I have been told that if I have a will, I can avoid probate. Why would I want to avoid probate?

A:Probate is a court procedure in which the estate of a person who has died (the decedent) is divided among his/her heirs. Contrary to what most people believe, probate can occur whether the decedent has a will or not.

The main reason why people want to avoid probate is to avoid the delay, the court costs, and the attorney's fees associated with probate. Probating even a simple estate can take a year or longer and can cost between $500 and $1,000. Probate is not always a bad thing, however. In fact, there are several circumstances when probate is a good idea.

Depending on the specificity of a will (or if there is no will, the outcome of the state's default procedure) there can be major disputes between survivors or heirs as to who is to get what from a decedent's estate. In probate, a judge (based on the will or the state's default procedure) will resolve these disputes and determine how property will be divided.

Similarly, even if there is no dispute among the survivors about who gets what from the estate, heirs can run into problems when third parties (banks, businesses, or private individuals) refuse to release or turn over property. In probate, the judge will issue a court order that must be followed.

Finally, in probate, creditors (people or businesses which are owed debts) have a much shorter time in which to collect debts owed by the decedent. By law, a creditor must file its claim within six months of the notice published in the newspaper of the probate action. If it does not file its claim within this period, it cannot collect from those who inherited property from the Probate Court. If the estate did not go through probate, the time for these creditors to collect their debts could be much, much longer - which could tie up the transfer of property or prevent heirs from using it.

Keep in mind that if you don't own real estate (other than in joint tenancy), have no debtors, and the total value of your estate is less than $50,000, no in-court probate is required to transfer property at your death. Rather, property can pass upon the execution of an affidavit called a Small Estate Affidavit. If you are unsure as to whether your relative's estate should go through probate, talk to an attorney.

Do you have a legal question? Write us at Self Help Legal Center, SIU School of Law, Mailcode 6804, Carbondale, Illinois or e-mail us at selfhelp@siu.edu. Not all questions will be answered and may be edited for space or content.

Legalities is written by the Self Help Legal Center, a public service of the SIU School of Law. The Self Help Legal Center cannot provide legal representation. It can, however, help you find the answer to your legal problem. This column is for general legal information purposes only and the advice given in this column may not apply to your situation. For specific legal advice about your situation, you should consult an attorney licensed to practice in Illinois. This column is not meant to give legal advice and does not create an attorney-client relationship.