When someone dies testate (with a Will) in Illinois, he/she will typically have named an Executor to represent the Estate in Probate Court. So, if you are the named Executor in such a Will, how do you go about actually becoming the Court-appointed Executor of the Probate Estate? Let’s take a closer look.
Illinois Probate Court Process to Become Appointed Executor of the Estate
While some may believe that being named as the Executor in a Will gives them full power to handle an Estate, the named Executor must first be appointed by a Court. In order to obtain this appointment, the named Executor must follow a few steps.
First, the named Executor must ensure that the Testator’s (Will-maker’s) original Last Will and Testament is filed with the local county court clerk in Illinois. The proper county for the Probate Estate is the county in which the Testator was last domiciled (meaning, where he/she resided, received his/her mail, etc.)
Second, the named Executor must determine whether a Probate is even needed. In Illinois, a Probate is typically necessary when there is real estate involved, or at least $100,000.00 in personal property in the Decedent’s name alone. For more information on this topic, visit our page on when an Illinois Probate is necessary.
Third, if a Probate is deemed necessary, the named Executor will need to petition the Probate Court to open an Estate and appoint him/her as the Executor of the Estate. In order to present a petition to the Court regarding this, the named Executor will need to determine who the interested parties to the Estate are, the address information for these interested parties, a list of all the Decedent’s assets, and an approximate value of the assets (both real and personal). The named Executor must also determine the heirship of the Decedent (meaning, who would inherit from the Decedent if he/she did not have a Will). Once the named Executor has all of this information, he/she must follow the local Probate Court procedures to file the necessary estate-opening documentation and to open the Estate in Court.
Finally, once the named Executor has become the Court-appointed Executor of the Estate, he/she must then notify all interested parties named in the initial petition regarding the opening of the Probate Estate in Court. This notice must also include a notification of the interested parties’ rights to be able to challenge the Will. After this notice has been sent, the Executor will then proceed to administer the Estate of the Decedent according to the terms of the Will.
How long does it take to be appointed as the Executor in Illinois Probate Court?
Because each local county Probate Court is different, the time it takes to become appointed as the Executor of the Estate can vary. Some Probate Courts in the Chicagoland area have busier calendars, such as Cook, DuPage, and Will County, while other Probate Courts are typically not as busy, such as Kane and Kendall County. Thus, if you have a Probate matter in Cook, DuPage, or Will County, it may take a month or more just to get in front of the judge on an initial court date to open the estate. On the other hand, the slower Probate Courts like Kane and Kendall County may only take a few days, or a few weeks, to get into court. In addition, the opening of a Probate Estate can be delayed by contested issues related to the Estate.
What are the qualifications to serve as the Executor of an Estate in Illinois?
Under Illinois Probate law, there are certain basic qualifications to serve as the Executor of a Will in a Probate Estate. According to 755 ILCS 5/6-13(a), it states:
Who may act as executor.) (a) A person who has attained the age of 18 years and is a resident of
the United States, is not of unsound mind, is not an adjudged disabled person as defined in this Act and has not been convicted of a felony, is qualified to act as executor.
Thus, a person must be a mentally competent adult, a resident of the United States, and not been convicted of a felony. If any of these requirements are not met, a person’s petition to serve as the Executor of an Estate will likely be denied by the local Probate Court.
Do you have to be named in the Will to serve as the Executor in an Illinois Probate Estate?
While this may be obvious to most people, it is still worth mentioning that a person must actually be named in the Will to serve as the Executor of an Estate. And if the first-named Executor is unavailable to serve, or fails to act, the Successor Executor named in the Will can proceed to act as the named Executor. However, if the first-named Executor is still living and can be reached, a Probate Court will typically require either a Declination to act from the first-named Executor, or notice to be sent to the first-named Executor that the Successor Executor is seeking to probate the Will and open the Estate.
In addition, if the named Executors under a Will are all unavailable and/or all fail to act, any interested party can seek to probate the Will and open the Estate by petitioning the Court to serve as the “Administrator with Will Annexed”. This role gives a person the authority to act as the representative of an Estate while also being able to use the Will to direct the Estate administration.
Can you serve as the Executor of an Illinois Estate if you live out-of-state?
From an Illinois Probate Court’s perspective, there is very little difference in serving as an Executor while living in the State of Illinois, or while residing out-of-state. Under 755 ILCS 5/6-13(b) of the Probate Act, one minor issue that is mentioned is as follows:
The court may in its discretion require a nonresident executor to furnish a bond in such amount
and with such surety as the court determines notwithstanding any contrary provision of the will.
Thus, while the typical Executor will not have to obtain a surety bond to serve as the representative of a Probate Estate, an out-of-state Executor may be required to do so. However, this requirement is rarely enforced in real practice.
Case Study: Do-It-Yourself Probate Gone Wrong for Executor Named in Will
Oftentimes, individuals will underestimate the complexity in probate law in Illinois and will try to do things themselves. On one occasion, we helped a former client, Sarah (the named Executor in the Will), with a probate matter where she mistakenly filed the Will in the wrong county. Sarah was also struggling with understanding the various court documents involved with the probate process. When she hired our firm to take over, we quickly obtained court approval from the probate court in the wrong county to transfer the Will to the proper county. Once the Will was transferred, we efficiently prepared, filed, and opened the estate in the proper county. We were also able to guide Sarah through the complexities in the probate administration process, including an initial partial distribution of the estate assets and a detailed final distribution of the assets to the beneficiaries.
Contact our Firm
Our firm has helped many Executors with routine and complicated Probate estates across the Chicagoland area, including in DuPage, Kane, Will, Cook, and Kendall Counties. If you have questions regarding a Probate estate, complete the form below to set up a free initial consultation today!
The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789