The entire process of probate in Chicago is based on the premise of agency and trust. Those who abuse the powers that are given during the probate process may face prosecution for crimes of dishonesty such as theft. Indeed, the breach of trust is an aggravating feature in any prosecution.
This is an important law for everyone because it is one which all are bound to encounter either as representatives or in absentia as the deceased at some time in their lives. Wrongful conduct during the probate process can lead to family strife as well as the possibility of a criminal prosecution. The statutes are clear about responsibilities and limitations, and over time the courts have set out general rules on how they handle such cases.
Basics of Probate Law in Chicago
The basic assumption of the law is that when a person dies, his or her family and heirs should be able to collect any property in an orderly and lawful manner. This may include the following tasks:
- Detailing all the assets that the deceased had
- Identifying all their debts and ensuring that they are paid off
- Dealing with the death duties and taxes
- Ensuring that there are sufficient funds to deal with all the funeral expenses
- Notifying all the interested parties about the death and the process of probate
- Ensuring that the remainder of assets are distributed fairly and lawfully, bearing in mind the expressed wishes of the deceased
The process also serves to protect the state from having to pick up the pieces when the family members run off with the assets without dealing with any of the liabilities that the deceased person left behind. The laws may also help in a criminal defense if there is a prosecution. Typically, a named executor or a member of the family will begin the probate process. This normally happens shortly after the death (but not too soon because of the potential for strife).
Formal and Informal Procedures
Some estates are so small in terms of their total value, that it does not seem sensible to go through the entire complicated formal process. If this is the case, the person who is acting as an executor can follow simple procedures that are agreed upon by the rest of the family. The new laws were specifically put in place to allow for this relatively informal procedure. Regardless of the informality of this type of probate, it is expected that the executor will act in good faith and not use the process for unjust enrichment through corruption.
Sometimes there is a disagreement about who should take charge of the probate proceedings. At other times, the estate may be victimized through white collar crimes by conmen. When the deceased has not named an executor in the will, there is an established order of preference as to who gets the first shot at it as follows:
- A spouse or partner
- Those who have been given a legacy in the will, with children and descendants getting the first pick
- The deceased’s children who are not named as inheritors in the will
- The deceased’s grandchildren who are not named as inheritors in the will
- Parents of the deceased
- Siblings of the deceased
Your lawyer should be able to give further guidance upon request.
Court Involvement in Probate
The courts were seen as supervising authorities for the probation process when the laws were being written. It is anticipated that the courts will only weigh in if there are irregularities and disputes. It is quite common for people who have been given power of attorney or executors of a will to face legal challenges and even prosecution. In this case, the services of a qualified attorney are essential. Contact David Freidberg Attorney at Law at 312-560-7100 for further advice if you are facing this type of situation.
(image courtesy of Ben White)