When researching the estate planning or probate process, you’re likely to run into plenty of unfamiliar terms or phrases – many of which can end up having fairly significant legal ramifications when you run into them in practice!

One such word may be “intestacy.” You may read that someone has “died intestate,” or that “intestacy laws” applied to some estate or another.

As with so much seeming legalese, it’s important to realize “intestacy” is more than just a word: It’s a vital concept to understand when it comes to estate planning and administration in Illinois. So, what exactly does it mean?

Intestacy: Guiding an Estate Without a Will

Broadly speaking, you may think of intestacy as the condition that an estate is left in when an individual dies without leaving behind a valid, enforceable will or other such declaration; it may also apply to an estate with significant gaps, where the will fails to clearly cover all of the decedent’s assets.

In the Chicago area, when a person dies intestate – that is, without leaving behind any legally-binding guidance for what to do with their assets and property – there is a fairly straightforward process that goes into effect, as determined by the Illinois Probate Act.

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As directed by the Illinois Probate Act, there are certain circumstances under which a closed probate estate could – and, perhaps, even should – be reopened.

Broadly speaking, an interested party to an estate can petition to reopen it at any time, in order to “permit the administration of a newly discovered asset or of an unsettled portion of the estate.”

So, what circumstances may qualify? Here are a few scenarios that may prompt an interested party to seek to reopen a closed probate estate in Illinois:

Discovery of a New Asset

An interested party may have reason to seek to have a closed estate reopened if they discover that the deceased owned previously unknown property eligible for probate, such as: 

• Real estate
• Boat or motor vehicle
• Bank account
• Retirement account
• Bonds or other securities

To qualify, remember that this asset must be titled in the deceased’s name (and not jointly owned with anyone as tenants with rights of survivorship), and have no designated or named beneficiary (which would allow the asset to get passed without probate having to be reopened).

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After someone dies, settling their estate becomes a matter of the utmost importance.

During the estate administration and probate process, an individual’s assets are distributed according to state and local laws, and in line with the decedent’s last wishes as established by their estate planning documents, such as their last will and testament.

While in many cases, the probate and estate administration process is a relatively straightforward matter, there are also circumstances where handling an estate isn’t so open and shut. And we mean that literally.

Under Illinois law, it is certainly possible to reopen a closed probate estate – provided that certain qualifications are met.

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Put most simply, a power of attorney (POA) is a legal document that enables someone you choose to make decisions on your behalf. This person is known as an agent, or agent-in-fact, and their duties and abilities are typically restricted to those that are specified within the POA document.

It’s important to understand that there are different types of POA designations, providing your specified agent with different degrees of authority. In Illinois, there are two types of POA that individuals need to consider, in most cases:

• Power of Attorney for Healthcare: This designation gives your chosen agent the ability to make medical decisions on your behalf
• Power of Attorney for Property: This designation grants your chosen agent to make financial, property (and, often, legal) decisions on your behalf

For the purposes of estate planning, it’s also important to understand another wrinkle that comes with granting both financial and medical powers of attorney – namely, the difference between durable and non-durable powers of attorney.

Durable Vs. Non-Durable Powers of Attorney

Broadly speaking, the authority of a non-durable POA ceases when the principal (or the person granting the powers) is deemed mentally incompetent. On the other hand, a durable power of attorney automatically extends the duration of the POA, meaning that it will stay in effect should the principal become incapacitated and incapable of handling matters on their own.

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What does it mean for an estate to be insolvent? How should representatives handle an insolvent estate? How does probate work for an insolvent estate, and are there any specific issues that could crop up?

Let’s look at these all-too-common questions in a little more depth:

What Is An Insolvent Estate?

In Illinois, an estate is considered to be insolvent when the debts of the deceased person exceed the total value of the assets in their estate.

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In Illinois, there are, broadly speaking, two different types of individuals who are tasked with guiding an estate through the probate process – executors and administrators.

Before we go any further, it’s important to recognize that these two types of personal representatives will largely take on similar duties during the probate process, including:

• filing and proving a will of the deceased in court (if such a document exists)
• gathering, inventorying, managing, and accounting for estate assets
• communicating with and settling claims from creditors of the estate
• preparing income and estate tax returns on behalf of the decedent
• distributing the contents of the estate to any relevant parties

Because of the similar responsibilities that they take on, you may even hear people use the terms “executor” and “administrator” interchangeably when referring to the representative of an estate. With that said, though, there can be a few minor differences between these two roles worth exploring in a little bit more depth.

Executor Vs. Administrator in Illinois

Above all, it’s worth noting that executors and administrators typically receive their responsibilities in different ways.

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As we’ve noted before, wills and trusts are both valuable estate planning documents, but they’re not one and the same. With that being said, though, there is a special type of last will and testament that can be put to work in conjunction with a trust-based estate plan.

This special document is known as a pour-over will, and it may be a useful tool for certain individuals to consider for their estate plan, depending on their unique needs.

What Is a Pour-Over Will?

Put most simply, a pour-over will puts all of your remaining assets into a living trust when you pass away.

Rather than dictating individual disbursements to various beneficiaries, a pour-over will, in essence, names your existing revocable living trust as the beneficiary of any property or assets that it does not already contain, or which do not automatically pass to another beneficiary outside of probate (such as designating a beneficiary on a financial account or insurance policy).

From there, your named successor trustee will act as an executor of sorts; they will be responsible for collecting all trust assets, including those transferred via the pour-over will, and properly distributing them to the trust’s beneficiaries.

Why Have a Pour-Over Will?

Trusts need to be funded with personal assets, as named by the signing of a trust document, or else by some other mechanism (such as retitling the assets to be in the trust’s name). There may be any number of reasons why assets aren’t funded to a trust over time – perhaps the owner wants to maintain greater control of their property. In many cases, individuals simply overlook or neglect an asset by mistake.

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Do all estates need to go through probate in Illinois? Not necessarily! In fact, there are plenty of conditions by which an estate can avoid probate proceedings.

For example, an estate will not need to go through a full probate process if the value of the estate isn’t significant enough to merit a full court process.

A good rule of thumb to consider? Ask yourself if the estate contains real estate (owned by only the decedent), or personal property in excess of $100,000.  If the answer to both of those questions is “no,” then the estate will most likely be able to avoid the probate process.  

Consider, too, that there are also all sorts of steps an individual can take during the estate planning process to help streamline probate, or help their property and accounts avoid it altogether, including:

• naming transfer-on-death and payable-on-death beneficiaries to applicable accounts, assets, and securities
• establishing a trust for personal property and/or real estate
• gifting the property to another individual before death
• owning assets jointly, with rights of survivorship for the surviving co-owner(s)

But with all of this being said, it’s important to bear in mind that an individual’s last will and testament, if it exists, does not get to avoid the courts in Illinois, under any circumstances.

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