Please find a list of our frequently asked questions,
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What is Probate?

Probate is legal term for the administration of a decedent’s estate in court. Probate is also the
division of the court that manages decedent’s estate cases, adult guardianship cases and minor
guardianship cases.

How long does the probate process take?

It varies depending on the amount of the estate’s assets, creditors and what kind of assets are
included in the estate, but most probate estates can be completely administered and closed in
about one (1) year.

Is a probate estate still necessary if my loved one had a Last Will and Testament?

Yes, the Last Will and Testament must be filed with the court. The Last Will and Testament dictates
how the decedent’s estate is to be ultimately distributed, but a probate court must still appoint an
executor who then has authority to carry out the direction in the will (this is called administering
the estate).

What does the administration of a decedent’s estate entail?

The representative of the decedent’s estate will file a petition seeking appointment by the probate
court. Once appointed, the representative is then responsible for collecting the decedent’s assets,
paying any claims and distributing the balance of the estate to the decedent’s heirs and/or legatees.

When is it necessary to open a decedent’s estate?

Whenever someone dies and the value of their estate exceeds $100,000.00 and/or includes real
estate (although there may be an exception for real estate).

What is guardianship?

When someone does not have legal capacity to make decisions on their own, either because they
are under the age of 18 or because they have a disability, guardianship is the legal term describing
the process in which the court appoints a representative (a guardian) with authority to make
decisions on behalf of that individual. For adults, the court can determine if an individual is partially
or totally incapable of making personal and/or financial decisions for themselves.

What is the difference between a Guardian of the Person and a Guardian of the Estate?

A Guardian of the Person has the authority to make personal decisions for the disabled person,
including healthcare decisions. A Guardian of the Estate has the authority to make financial
decisions for the disabled person. Guardians must make decisions in accordance with Illinois law
and the specific direction (orders) of the court.

Under what circumstances would a Minor need guardianship?

Parents automatically have custody of their children and are therefore authorized to make personal
decisions on their behalf (healthcare, education, living arrangements, etc.). However, if a minor
child inherits or otherwise receives a large sum of money, the law requires that a guardian of the
estate be appointed in order to make financial decisions for the minor until he or she turns eighteen
(18). Depending on the amount of money in question, a financial institution or a parent can be
appointed guardian of the estate of a minor. A minor may need a Guardian of the Person if
someone other than the minor’s biological parents needs to make personal decisions for the minor
until he or she turns eighteen (18).

What is estate planning?

A comprehensive estate plan is a set of documents that safeguards your assets, designates decision-
makers to act on your behalf in the event you are incapable of making your own decisions, and
dictates how your estate is to be distributed upon your death.

What does an estate plan consist of?

Typically, a basic estate plan includes a Revocable Living Trust, Last Will and Testament, Power of
Attorney for Healthcare and Power of Attorney for Property. Additional documents may be
necessary to retitle real estate and other assets.

What is a surety bond and why do I need one?

A surety bond is a form of insurance.  This insurance is not protection for the guardian (or
executor/administrator), but it protection for the person who needs a guardian.  By issuing a bond
the bonding agency agrees to repay the child or disabled adult, or decendent's estate, any money that might be lost
because of the guardian’s/representative's actions or mistakes or mismanagement. Illinois law requires ALL court-
appointed guardians/representatives to carry a bond equal to 1.5 times the amount of assets in the
estate (for example, if the estate is valued at $100,000 – the guardian must present a bond to the
court in the amount of $150,000). Bond premiums cost approximately 1% to 2% of the value of the
estate and premiums can be paid from estate assets.

Couldn't find the answer you are looking for?

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About Us

At Garcia & DeCostanza P.C. we recognize that if you are involved with the probate court, you are going through a difficult time. Your family needs help and you want the best legal services available for a reasonable price.