Probate
Probate is the court supervised process where a representative is appointed either through a Last Will and Testament, called an Executor, or through a court order when there is not Last Will, called an Administrator, where a person is appointed to collect a deceased individual’s assets, pay the debts, and distribute the balance to those entitled to receive the remainder according to Illinois Statute and pursuant to the Will. Probate law is governed by Illinois law and the Illinois statutes provide the groundwork for the procedure of administrating and settling a decedent’s estate.
Testate or Intestate Estate
When a person dies with a Last Will and Testament, the person is considered to have died “testate.” When a person dies without a valid Last Will and Testament, the person is considered to have died “intestate.” The primary difference is that a Will controls who receives the decedent’s assets. The individuals designated to receive assets under a Will are called “Legatees.” The individual who manages the estate under a Will is the Executor. When a person dies Intestate, Illinois law designates which person, or combination of people, are to receive the person’s remaining assets after payment of debts or claims. The individuals designated to receive assets when there is no Will are called “Heirs” and the person who manages the estate is the Administrator.
When a loved one passes away, the attorneys of FMGR will work with you to make sure that a decedent’s estate is managed and any goals spelled out in a Last Will and Testament are accomplished, or the administration of an Intestate estate is completed, and that the necessary taxes are timely paid, and the estate may be closed. In addition, we have experience serving as personal representatives and trustees, and take seriously the obligations that such appointments impose.
When a loved one passes away, the attorneys of FMGR will work with you to make sure that a decedent’s estate is managed and any goals spelled out in a Last Will and Testament are accomplished, or the administration of an Intestate estate is completed, and that the necessary taxes are timely paid, and the estate may be closed. In addition, we have experience serving as personal representatives and trustees, and take seriously the obligations that such appointments impose.
Guardianship
The process of seeking a guardianship, or other alternate remedy, can be complicated and emotional. If you are considering a guardianship or similar remedy, our knowledgeable attorneys at Feirich/Mager/Green/Ryan can help.
Guardianships are a legal mechanism for ensuring that an individual who cannot take care of themselves have a person to help make decisions for them. This could be a minor child who has lost both parent or an adult. A common example is a senior parent with dementia who can no longer make sound decisions or take care of important financial matters on their own. Guardianships may be considered for adults with physical or developmental disabilities who can live somewhat independently, but may require a moderate to significant amount of daily assistance. In both of these scenarios, the adult may qualify as a person with a disability, as required by the Illinois Probate Act of 1975, 755 ILCS 5/1-1 et seq.
What is a “Person with a Disability”?
In Illinois, guardianships, whether for adults or children, are done through the probate court. However, the court will only consider guardianship for an adult who is judged to meet the legal definition for a person with a disability. This definition is: A person 18 years of age or older who:- Because of mental deterioration or physical incapacity is not fully able to manage their person or estate
- Is a person with mental illness or a person with a developmental disabilityand who because of this mental illness or developmental disability is not fully able to manage his or her person or estate, or
- Because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes their estate as to expose themselves or their family to want or suffering.
The Adjudication of Disability and Guardianship Process
Typically, in order for a guardian to be appointed, an interested person, such as a family member, must file a petition with the courts. Along with the petition for guardianship, the interested person must file supporting evidence, typically a physician’s report, for the alleged disability. The courts will then commence an adjudication of disability alongside the guardianship. The alleged disabled person then has the opportunity to contest the petition, either by working with an attorney or a guardian ad litem if one is appointed by the courts. Whether contested or uncontested, guardianship proceedings culminate in a hearing, where evidence about the alleged disabled person’s health, mental faculties, finances, housing, and lifestyle are presented. The court will review all the information available and find the person as having a disability only if they are convinced, by clear and convincing evidence, that the alleged disabled person meets the qualifications for disability described above and in accordance with Illinois law at 755 ILCS 5/11a-3. If the court finds that the individual meets the standard to be legally declared disabled, then a guardian may be appointed.Types of Guardianship in Illinois
There are two main types of guardianship used in Illinois:- Guardian of the Person. This type of guardianship is used if the court finds that the person with a disability “lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person.” Guardians of the person are responsible for caring for physical needs and care of the person in their charge, including arranging medical services and arranging a suitable living environment.
- Guardian of the Estate. This type of guardianship is used if the court finds that the person with a disability is unable to manage their estate or financial affairs. Guardians of the estate are responsible for handling financial matters for the benefit of their ward, including managing their income, assets, and property.
