PROBATE IN ILLINOIS: THE BASIC PROCESS

PROBATE IN ILLINOIS: THE BASIC PROCESS

When a person dies, Illinois law generally requires that the decedent’s estate go through the probate process.  The exception to this rule is if the decedent owned no real estate at the time of death, and the remainder of the estate is valued at less than $100,000.  In this situation, the decedent’s heirs can use a Small Estate Affidavit to obtain and distribute the estate’s property.  However, if the Small Estate Affidavit exception does not apply, Illinois generally requires a court of law to probate the estate.

An estate may be probated whether or not the decedent left a Will.  If a Will exists, the estate must be divided pursuant to the Will’s instructions.  If there is no Will, the decedent is deemed to have died “intestate.”  The estate is then divided pursuant Illinois’ laws of intestate succession.  In general, intestate succession in Illinois provides for the decedent’s spouse and children to receive the estate.  If the decedent left no spouse or children, the estate is divided among decedent’s parents or siblings.

In order to initiate the probate process, the decedent’s original Will (if applicable) must be filed with the Circuit Clerk in the county where the decedent resided at the time of death.  Next, a Petition to open probate estate must be filed.  The Petition must plead the following facts:

  • Full name of decedent;
  • Decedent’s place of residence at death;
  • Date of death;
  • Place of death;
  • Approximate value of the decedent’s real estate located in Illinois;
  • Approximate value of the decedent’s personal property located in Illinois;
  • Approximate value of the decedent’s real estate located outside Illinois;
  • Approximate value of the decedent’s personal property located outside Illinois;
  • Full name and mailing address of the Petitioner;
  • Full names and mailing addresses of the decedent’s heirs;
  • Whether any of decedent’s heirs is a minor or person with a disability.

If decedent died with a Will, a Petition to admit the Will to probate must also be filed along with a Petition for Letters of Office.  The Petition for Letters of Office should be verified, or sworn to, by the Petitioners.  The Petition for Letters of Office asks the court to appoint a certain individual, called an Executor, to manage decedent’s estate as identified in the Will.

If the decedent dies without a Will, a Petition for Letters of Administration is filed.  In this Petition a close family member or friend asks the court’s permission to serve as the Administrator of the estate.  The court will generally appoint this person as the estate’s Administrator.  The Petition for Letters of Administration should identify the Petitioner, the Petitioner’s relationship to the decedent, and a formal request to be appointed Administrator.

Before the court will appoint an Executor or Administrator, the individual seeking appointment must submit an Oath of Representative that swears the individual will perform his or her duties in accordance with the law.  If there is no Will, the Court may require the Petitioner to post a bond.  Many Wills waive the bond requirement.

Once the Executor or Administrator is appointed, the court orders the circuit clerk to issue the Letters of Office.  The court will also issue an order naming all of the decedent’s heirs.

Within 14 days after the Letters of Office are issued, a Notice to Heirs and Legatees must be sent to all known heirs.  This Notice must include the Petition for Probate, the Order admitting the matter to Probate, and a description of the rights of the heirs.

Also within 14 days of the admission to Probate, a Notice to Unknown Creditors must be published in a local newspaper that advises the estate was opened and creditors have 6 months to file a claim against the estate.

During this 6 months, the Executor or Administrator should be distributing the estate’s property to the heirs named by the court.  Once the 6 month period for creditors to file a claim expires and all estate property is distributed, the estate should be closed.

Navigating a probate case in Illinois can be difficult.  If you are wondering how to manage the estate after the death of a loved one, local attorney Andrew Szocka can provide thorough and speedy probate and estate help in the Chicagoland area.  To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.