Need advice on unexecuted will and trust options- IL

[Basche]

What is the name of your state? - for the purposes of this discussion the state will be Illinois.

My niece has been the caretaker for her ailing parents for five years. She is an only child. Her father passed away 2 months ago. Her mother, having stage 4 cancer, never executed his will. The mother is now in the hospital for what is now her final journey.

Here is the question I told my niece I would submit.

What actions can be taken so as not to have the estate(s) tied up in a lengthy probate court case? My understanding is that there was a trust setup many years ago but do not know how or if the assets were entered into the trust.

Any advice would be appreciated.

 

[tranquility]

What actions can be taken so as not to have the estate(s) tied up in a lengthy probate court case?

The only thing which will help the situation is to make sure mom makes a valid will and/or trust for her assets. (Or, a present gift of them if there is not a medicaid lien.)

Everything else is just a guess as we have no facts.

 

[anteater]

Just a note or two...

"Executing a will" means creating and signing a will. And, one would hope, having the will witnessed. I believe that you mean that the father's will was never admitted to probate.

Having said that, it might not be/have been necessary to probate the father's will since many married couples own all or most assets in a manner such that the assets transfer automatically to the surviving spouse without the need for probate.

But, as Tranq said, there aren't enough facts to hazard an opinion. You or your niece need to do some digging first.

 

[Kiawah]

And you should investigate exactly how the deed to the house is titled. It may, or may not, be titled as a trust asset.

 

[Basche]

Thank you Tranquility and Anteater for your reply and advice.

Do all wills need to be probated? (I hope that is a real word)

What happens if there is no will from her mother and the trust does not have the daughters name attached to it?

There was indeed a will for her father. I do not know about a will for her mother. Her mother, while sick, refused to grant her daughter power of attorney or add her to the trust (that I am aware of). She did add her to one of her several checking and savings accounts some time ago. The history of her mother is that of not trusting anyone with her finances. Even though she was told over and over that her demise was imminent and this would cause her daughter problems after her passing.

I am hundreds of miles away from my niece and sister-in-laws home. Her demise is literally a matter of a day or hours. I have no vested interest in this. I am just looking to make the transition easier on my niece. Losing both parents in a matter of months is not easy. And it doesn't help that she is 8 months pregnant. We all had hoped that her mother would stay long enough to see her grandchild and was not thinking in terms of what happens after and all the what ifs'.

 

[tranquility]

Do all wills need to be probated? (I hope that is a real word)

It is a real word, but all wills don't have to go through the process. It depends on the amount of the assets.

What happens if there is no will from her mother and the trust does not have the daughters name attached to it?

Intestate succession for the assets outside of the trust and in accordance with the trust's terms for the assets within it.

 

[anteater]

Let me suggest... This probably just isn't the time to focus on these types of questions. There will be time later to sort through things. Hopefully, you and/or other nearby relatives can help with that.

Depending upon what you mean by adding the niece to some of the accounts, those accounts may pass to the niece without the need for probate.

Regarding a trust... Just remember that a trust can be created, but never funded with assets. If assets were never re-titled to the trust, then the trust document is just an empty shell.

Also... Having a will does not mean that probate is avoided. Probate is the legal process by which a will is adjudged to be valid and a person is given the legal authority by the court to administer the deceased's probate estate and carry out the will's provisions. In this case, where your niece is an only child, the difference between testate (with a will) probate and intestate (without a will) probate is minimal.

 

[curb1]

Does niece know where the trust document is? Can she ask her mother? Niece can find out from the courthouse if real estate was titled with the trust. How much does niece know about the assets? Insurance? Retirement plans? Etc.? Any information she can find out (if possible) prior to death can be very helpful.

 

[Basche]

Thank you curb1 and to all the others on this thread. I have passed along your comments and advice for my niece and her husband to digest.

I believe that she has a good handle on where the wills,trusts and other legal documents are.

I do have one final question if you please.

Is there a time limitation in the state of Illinois to submit to probate? If so, what is that time frame.

 

[anteater]

Is there a time limitation in the state of Illinois to submit to probate? If so, what is that time frame.

There is some statutory stuff about filing a will within 30 days after the testator's death. But, the penalty is only that the court might deny the nominated executor appointment as the probate estate's executor.

Effectively, there is no time limit.