Tag: probate court

Capacity to Make a Will: What You Need to Know

If your ailing relative wants to make his or her will, the concept of capacity could come into play. Capacity to make a will affects whether the will is valid when the relative’s estate is distributed. If the creator of the will did not have capacity when he or she signed it, the probate court may not enforce its terms.

What Is Testamentary Capacity?

Capacity to make a will (testamentary capacity) is defined as the “mental ability to know and remember who are the natural objects of [your] bounty, to comprehend the kind and character of [your] property, and to make disposition of the property according to some plan formed in [your] mind.” In other words, to make a will you need to understand which property you own and be able to plan out how to distribute the property to others.

How Do You Tell If Someone Does Not Have Capacity?

The probate court must assume that a person making a will has testamentary capacity, unless it is proved that he or she did not. Physical impairments alone usually do not make someone lose capacity. It is more likely that a mental impairment would make someone lose capacity. In other words, the inability to speak or move does not necessarily mean someone cannot make a valid will. But someone with a severe mental impairment such as advanced dementia might not have capacity.

In addition, the appointment of a guardian for someone may be evidence showing the person does not have capacity. But neither physical impairments nor having a guardian are conclusive evidence.

Why Does Testamentary Capacity Matter?

If the person making the will did not have capacity at or around the time it was signed, the probate court may invalidate the will. An interested person such as a relative must “contest” or fight the will in court. He or she has the burden of providing evidence that the testator did not have capacity.

When an interested person wins a will contest, the will in question is disregarded. The testator’s property might pass to relatives via intestate succession or an older will might be used instead. This could drastically affect how the estate is distributed.

Have questions about making your will? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What Should You Do If Your Relative Chose You as His Executor?

Not long ago, your relative told you that he chose you as the executor of his estate. You are not sure what being an executor means, and you don’t know what your responsibilities are. Now, your relative has sadly  passed away. What should you do?

  1. Making Funeral Arrangements

Since you believe that you are the executor of your relative’s estate, you may need to take charge of making funeral arrangements. Talk to other family members and find out if your relative left a document explaining his funeral and burial wishes. This may be a separate document or part of a will or power of attorney. Follow those wishes if you can. If you cannot locate anything, ask your family what they think your relative might have wanted and take their suggestions into consideration.

  1. Look for the Will and Other Important Documents

You also need to find the will and other important documents concerning your relative’s estate. In particular, you need to confirm that you are listed as the executor in the will. The will may be in your relative’s house, with a trusted person like a lawyer or financial advisor, or locked up in a safe or safe deposit box. Getting access to the will could take some time and even require a court order. If you are having trouble finding it, you may want to speak to a lawyer to learn more about your obligations and duties.

  1. What to Do with the Will

When you find a will, you may need to submit it to the probate court. In some cases, when an estate has a lower value, you do not need court help to distribute the estate. Figuring out whether the probate court needs to get involved usually involves assessing the estate’s overall value, which might require professional help.

If you need to go to court, locate a lawyer who can assist with filing court forms and appearing before the judge. If you do not need to go to court, you will still need to do some paperwork. Executors have to gather all estate assets, figure out how much they are worth, locate heirs, and distribute the assets to the heirs according to the will. This process can take months or years depending on the estate’s complexity. Once the estate is completely distributed and taxes are filed properly, the executor’s job is done.

Appointed executor of an estate and need legal advice? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What to Do If You Have Been Disinherited from an Estate

If you were expecting an inheritance, learning that you have been disinherited from an estate could be devastating. You were probably expecting the money or property and had been counting on receiving it. In this situation, you have a few possible options, such as speaking to a lawyer, appealing to the probate court for help, or deciding to move on.

Speak to a Lawyer About the Estate

Sometimes, you feel more than just upset about not being included in the will. You may have reason to believe that you were wrongly disinherited. In that case, you should speak to a lawyer about your concerns. The lawyer will talk to you about possible reasons for overturning a will or changing the inheritances. These reasons could include:

  • The deceased person did not have legal capacity to make a will
  • Someone unduly influenced the deceased person as to the contents of the will
  • There is a newer will with different terms
  • The will was not witnessed or signed properly
  • A spouse or child is not included in the will, but the will was written before the marriage or birth

Whether you have a case for disputing the will depends on the specific circumstances at hand, so you should speak to a lawyer before taking the next step – going to court.

Appealing to the Probate Court

You can bring genuine legal disputes about wills to the local probate court. The judge will consider evidence and decide a dispute revolving around a will or a deceased person’s wishes. However, keep in mind that you must have a legal reason for disputing the will, not just dissatisfaction about who inherits what. Talk to your lawyer to learn more about the probate court process.

Moving on from an Inheritance Dispute

Often, it is better to move on from an inheritance dispute if you do not have a legal basis to dispute the will. You might have considered talking to the executor or the heirs, but they do not have the power to change the will. The executor is bound by the law to distribute the estate according to the will. So in the end, you may have to accept the will’s terms, no matter how little you like them. Consider doing some estate planning of your own instead of worrying about the will.

Need help with an estate or will issue? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What You Need to Know About Probate Court in Illinois

If you need the help of a probate court in Illinois, you probably have some questions about the probate process. You may not be familiar with what the court does and why you might need it. Also, you may have questions about your case before you go to court.

What Does a Probate Court Do?

In Illinois, judges assigned to the probate court division of a courthouse decide legal issues related to estates, wills, and trusts. For example, if disputes arise about how a trust should be run, the probate court handles the case. The beneficiaries might believe that the trustee is not running the trust well, or the trustee might need a legal decision on how to interpret the trust document.

Probate judges also spend a lot of time supervising estate executors or personal representatives in the process of distributing deceased people’s assets. The probate process for estates with or without wills involves many steps, including:

  • Reviewing a will
  • Locating and notifying heirs
  • Handling disputes by heirs and claimed heirs
  • Locating and notifying creditors
  • Handling creditor claims
  • Gathering all of the deceased person’s assets
  • Managing assets so that they do not lose value
  • Distributing assets according to the will or the rules of intestate succession

The probate court judge handles some parts of the probate process, and he or she oversees the estate executor or personal representative for the rest. Disputes or questions that the judge must decide can arise at all of these steps in the process.

When Do You Need to Go to Probate Court?

If you are named as the executor in a will or are a family member helping with your deceased relative’s estate, you may need to file a probate court petition. Under Illinois law, estates with lower total values do not always need to go through probate court. But it can be difficult to determine if a particular estate meets those requirements. You may need legal help to make the final determination.

As for trust and inheritance disputes, consulting a lawyer is a good idea too. You will want to know your chances of prevailing in probate court, whether you think the trustee is mismanaging the trust or you think you should inherit part of an estate. The legal issues can be complicated, and the probate process is not always easy without an experienced attorney guiding you.

Do you have more questions about probate court? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

How Do You Figure Out Who Is the Estate’s Executor?

How Do You Figure Out Who Is the Estate’s ExecutorWhen a relative passes away, you may need to figure out who is the executor of his or her estate in order to distribute the relative’s assets to heirs. Determining the executor is usually relatively simple once you locate the will.

Why Do You Need to Identify the Executor?

An estate executor serves several important functions in distributing and settling a deceased person’s estate. He or she gathers all of the deceased person’s assets, locates any heirs, notifies creditors, and distributes the assets to heirs. The executor handles payment of taxes and legal fees, hiring professionals if necessary to help manage estate assets. In addition, an estate executor sometimes must make filings with the probate court.

An executor usually needs to take charge of estate assets soon after a person passes away to prevent any reduction in value of the assets (such as unpaid bills or damage from neglect). Sometimes, the burial arrangements or end of life wishes could be delayed because the executor has not been identified quickly.

How Do You Identify the Executor?

The deceased person’s will should name the executor. Many wills also name successor executors in case the first one cannot or will not perform the job. Once you locate the will, locating the executor is usually simple.

In some cases, though, you might have a tough time figuring out who is the estate executor. This could happen if:

  • The will does not name an executor
  • You cannot locate the person named as executor
  • The executor has died or is incapacitated and no successor is named
  • You cannot find the will
  • The deceased person did not make a will

If there is no will, then the probate court likely needs to appoint an estate representative to serve essentially the same function as an executor. You or another interested person such as a relative or friend of the deceased person needs to apply to the court requesting this appointment. The probate judge will then select an appropriate person to serve as representative with court supervision.

Need help handling a deceased relative’s estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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