The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.

Question

I know that one is required to file “Probate” when a spouse dies, but I don’t know what it is exactly. How does one go about filing probate? 

Answer

When someone dies, they leave an estate that must be settled. First, this means collecting the person’s property and paying their debts.  What's left over is then distributed. The distribution is directed by a valid will. If there’s no will, it is directed by Illinois inheritance rules. A valid will must be filed, but it doesn’t require a probate case. It can simply be filed at the courthouse, as a public record.

Some property never goes into the estate. For example, real estate held in joint tenancy passes directly to the surviving joint tenants. In addition, life insurance proceeds go directly to beneficiaries. Things that aren’t part of the deceased person’s estate don’t have to be handled in settling their estate.

Probate is just one way to settle an estate when someone dies. And it's not always required. Illinois law allows a different and simplified procedure for handling small estates.

A small estate is one with no land and less than $100,000 in total assets.  The simplified procedure for small estates begins with an affidavit. The affidavit summarizes the person’s estate and how it should be distributed. It must be notarized. The affidavit is often coupled with a copy of the death certificate. The affidavit can then be used to complete the distribution of property. This is without filing a probate case in court.

If you can’t or don’t want to use the small estate procedures, you’ve got two types of probate to choose from. The first is limited supervision. The second is full supervision. With limited supervision, a probate case is opened in court. There, the judge simply reviews and approves the final accounting that’s filed by the estate administrator. With full supervision, the judge takes a more active role in the actual administration of the estate. In either case, the judge issues “letters of office” making someone the legal representative of the estate.

Full supervision is what many people incorrectly think happens with all estates. They fear that things will get tied up in probate. But full supervision isn’t necessary unless there’re special twists. These special twists are like filing lawsuits on behalf of the deceased, or things that people may fight over. Most estates, especially small ones, won’t ever require full supervision in probate court.
 

Editor’s Note: Starting in 2023, if you need to get a copy of a death certificate for a member of the U.S. military, you can receive a copy at no cost to you. This applies to both active duty service members and veterans who were honorably discharged from the U.S. military. To get the death certificate, you will have to make a written request to your local registrar or county clerk. They can give you up to one certified copy of the death certificate, under seal, for free. If you need more than one copy, each additional copy should not be more than $6.