A lot of lawyers sell four or five thousand dollar will and trust packages that might avoid probate court processes for clients who would be better off with a court looking over their child or other adviser’s shoulder to make sure estate administration is prompt and fair. Illinois law now allows transfer by affidavit, independent administration, or full probate review for decedent’s estates. The first two are likely to cost a lot less than complex living trust transfers of all assets before death and bank or other institutional costs of trust administration after same. The third, with full court supervision of income and outgo, can help manage post-death family conflict resolution if most beneficiaries and the trustee or executor don’t know or don’t trust each other.
Transfer by affidavit is the cheapest way to get assets out of the hands of banks, stockbrokers, or other institutions if the total estate is worth less than $100,000. Illinois statutory form small estate affidavits can be used by heirs or by legal guardians or parents, if a child or dependent adult is to receive funds. You can sue if the institution refuses to cooperate.
Probate in court isn’t what it used to be, either. Unless a will requires court supervision of every payment in or transfer out of funds in an estate, independent administration is allowed in Illinois. This means your executor only has to file and go to court twice: once, to prove up the will and get “letters rogatory” proving his or her authority to act based on your instructions, and then to make a final report after all assets have been collected, and all tax and other creditors and legatees paid. The final report court order cuts off late claims and provides executors protection against disappointed heirs if they fail to contest the final report in time and with reality based objections.
If there are family arguments, or all the beneficiaries are strangers, then supervised administration in a probate court is probably safer and cheaper than private resolution of accounts in a bank trust, or by an untrustworthy family trustee with no limits on his or her actions. Court-supervised proof that a will or trust was made by a competent person, and that all receipts and expenditures match what the will or trust or the law requires, provide some assurance to strangers that every notice, proof, and payment needed is in process and has been made before the executor is released from his or her bond, and a third party bond company to look to if the executor dies or otherwise fails to act properly. In a mistrustful world, full of possible thieves, formalities can be your friend.
If you need help with pre-death planning or estate administration questions, drop me a line at wprice@growthlaw.com to let me know when we could talk. The first call or cup of coffee or tea time is always free.
