Article Authored By: Brian M. Bentrup
The loss of a loved one is a difficult experience and one which can be exacerbated when relevant documents and information cannot be located. What can and must be done in the short-term after a loved one passes away? What can be done if documents cannot be located? Those are pressing questions on anxious minds, minds which become increasingly anxious without counsel, guidance or direction.
There are three key questions in probate: What are the assets? How are they titled? What documents control? The first two questions will dictate whether probate is necessary, and the third will determine the particular probate path.
Generally in Illinois, an estate must go through probate if the total value of accounts solely in the decedent’s name and without joint owners or beneficiaries exceeds $100,000. All real estate, regardless of value, must go through probate if there is no joint owner or transfer-on-death instrument.
Once a determination has been made that probate will be necessary, the next concern is locating operative documents. This can be a difficult task depending upon the decedent’s record keeping and the amount of information provided to family, friends and, most importantly, people named in the documents. I often encounter a situation in which a decedent’s adult child is confident mom or dad executed a will because they had conversations about it, but now the will cannot be found. A will must be found to be filed and admitted to probate, naturally, but what happens when it cannot be found? What options are available?
The most common places to find a will is at home amongst the decedent’s important papers or in a home safe, with the drafting attorney, or in a safety deposit box. If the will is believed to be at home, there is no alternative but to search the house top-to-bottom. This can be understandably difficult if the decedent was disorganized or a hoarder. If you know the attorney that drafted it, he or she could be contacted to see if it is in attorney’s fireproof safe or if the attorney can provide a copy. An original will must be filed within 30 days of death, but what happens if the original cannot be located? Although Illinois assumes that lost wills are revoked, a will copy can be admitted in limited contexts. This could occur where, for example, the heirs can prove that the decedent did not undertake some act to revoke the will copy and that the copy reflects his or her final wishes. This is not an easy task and could mean intestate (no will) administration.
What if you don’t have any version of the will, but believe the original or a copy is in the decedent’s safety deposit box? The named executor has a right to access the documents, but how can a person who believes they are named establish that he or she is, in fact, named without access to the document itself?
In such a case, 755 ILCS 15/1 allows an “interested person” to ask the financial institution leasing the safety deposit box to open it to look for a will or burial documents. In order for the statute to apply and for the box to be opened, the person that seeks opening of the safety deposit box must provide a copy of the death certificate, an affidavit, ensure there are no other lessees on the box, and qualify as an “interested person”. If there is another lessee, that lessee could open the box. In the absence of another lessee, the preson would need to present an affidavit that states: (a) the affiant is interested in the filing of the lessee’s will or in the arrangements for the decedent’s burial, (b) the affiant believes the box may contain a will or burial documents, and (c) the affiant is an interested person under the statute.
An interested person is any person is: (a) anyone to whom the decedent granted access in a writing at the financial institution immediately prior to death, (b) any person believed to be the executor based on a copy of the will (if available), (c) the decedent’s spouse, adult descendant, parent, brother or sister, or (d) any other person who the financial institution in its sole discretion determines may have a legitimate interest in the filing of the lessee’s will or in the arrangements for his burial. The final category is catchall in the event (a), (b) or (c) do not apply. The financial institution must then file the will by statute and cannot remove any other contents until Letters of Office are presented.
Beyond the locating and filing of the will, there are other administrative items that must be addressed as well. The Social Security Administration (SSA) must be notified and certain family members may be eligible for death benefits. Generally, a funeral director will notify the SSA, but it is best if an heir confirms because the ultimate obligation rests with the heirs. A local SSA office can also provide more information about any survivor benefits.
If the decedent was a veteran, the Veterans Administration (VA) should be contacted. The VA can help with any benefits payable to survivors and may include burial or funeral services.
Indeed, funeral and burial arrangements must be made. As mentioned above, the funeral director can not only notify the SSA, but can also order death certificates for future use. If a loved one paid for the funeral, wake, burial or any other final expenses, those must be reimbursed. The personal representative must also reimburse Medicaid, if necessary, and pay any caregivers.
The personal representative must take steps to secure tangible personal property, real estate, and any intangible assets such as bank accounts, brokerage accounts or other non-qualified assets. As part of this process, the personal representative must ensure that any estate assets are properly insured.
Liabilities of the decedent and his or her estate must be assessed as well. The personal representative shoudl forward all mail and analyze possible claims against the estate. The personal representative should not pay all claims immediately; rather, it is advisable to first ensure any such claim is valid. Next, the personal representative should determine whether there are sufficient assets to satisfy all valid claims. If not, such claims may not be payable due to their respective priorities. For example, credit cards are unsecured claims, meaning there is nothing that can be used to satisfy the debt if the estate does not have sufficient assets. If the estate has insufficient assets, these claims may be negotiated down or denied all together.
If the decedent owned real property, the utilities and mortgage must be addressed. The utilities should continue being paid and can remain the decedent’s name for a short time after death provided the personal representative is not intentionally trying to deceive the utility company. Often times it is the simplest path if the estate contemplates selling the real property. Particularly in a hot real estate market where property sells fast, it may not be worth the time and effort to change the utilities when a third-party purchaser will do the same 30-60 days later. The mortgage should also continue being paid, and the Garn-St. Germain Act provides that the mortgage can be assumed and that the transfer based cannot be the basis for acceleration and foreclosure.
There are no shortage of items that a personal representative must undertake in the short-term after a loved one’s death. While probate is largely governed by what the assets are, how they are titled, and what documents control, discovering what the estate consists of is not always an easy task. Some decedents maintain immaculate records and have conversations with the individuals they’ve named with respect to where to find documents and assets. Others do not. The difficulty of losing a loved one can be exacerbated by the seemingly overwhelming task of administering the estate. This is why few personal representatives can administer a probate estate without an attorney and why some counties expressly prohibit it. A little work on the front end can save a great deal of time, money, energy and headaches for friends and family once that loved one is gone.
About the Author:
Brian M. Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.
Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.
Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.
Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.