When a person dies in Illinois, he/she will either die with or without a will. If the deceased person had the foresight to draft a will before passing, he/she will likely have named an Executor to represent the estate. So how does an Executor of an estate in Illinois actually probate a will and administer the Estate? Let's find out.
Duties of an Executor in Illinois
One of the first duties of an Executor is to ensure that the deceased person's will has been properly filed with the clerk of the local county court where the deceased person resided. The following is a list of links and information to various Chicago area county court clerk offices where the original last will must be filed if the decedent resided in one of these counties:
In Kane County, original wills are filed at the clerk's office on the first floor of the Geneva Courthouse in downtown Geneva, located at 100 S. 3rd Street.
In DuPage County, original wills are filed at the clerk's office on the first floor of the DuPage County Courthouse in Wheaton, located at 505 N. County Farm Road.
In Kendall County, original wills are filed at the clerk's office directly past the metal detectors at the Kendall County Courthouse in Yorkville, located at 807 W. John Street.
In Will County, original wills are filed at the clerk's office on the first floor of the Will County Courthouse in downtown Joliet.
In Cook County, original wills are filed on the 12th Floor of the Daley Center in downtown Chicago, located at 50 W. Washington Street.
Once the original will has been properly filed, the Executor has the duty to file a petition to probate the will within 30 days (755 ILCS 5/6-3). If the Executor fails to act, the Probate court may ultimately deny that person the right to serve as the Executor. (To learn more about this topic, visit our page on how to become the Executor of a probate Estate in Illinois.)
When the will has been admitted to court and the named Executor has been formally appointed as the representative of the estate by the Probate court, the court will issue a document called the "Letters of Office" or "Letters Testamentary", which confirms the Executor's appointment as the representative of the estate. The Executor can use the Letters of Office with banks, insurance companies, government entities, etc., to transact business on behalf of the estate.
Once the Executor has been appointed, he/she must then collect and inventory all of the estate assets, and determine all of the final debts of the deceased person. This process can take several months to several years to complete depending on the complexities involved, such as needing an ancillary Probate proceeding in another state for an unsettled piece of real property.
The Executor is also responsible for properly notifying all heirs and legatees of the estate regarding the Probate proceedings (755 ILCS 5/6-10), and properly publishing notice to unknown creditors in a local legal newspaper. The publication for unknown creditors is known as a "claims publication", and any unknown creditors or claimants have six months from the date of publication to file a claim against the estate. Once the six-month claims period has run, all future claims against the estate are barred.
After completing the above steps, the Executor must then prepare an accounting for all interested parties regarding his/her handling of the assets and debts/liabilities of the estate during the administration period. If all interested parties are satisfied with the Executor's final accounting and overall handling of the estate, the Executor will then proceed to make distributions according to the terms of the will. Once distributions have been made, and assuming that the six-month claims period has run, the Executor can then proceed to petition the Probate court to close the estate (755 ILCS 5/28-11).
Independent vs. Supervised Administration
In Illinois, a probate estate can either be administered under independent administration or supervised administration. Under independent administration, an Executor is free to carry out the terms of the will without having to seek the court’s approval at every step. Under supervised administration, on the other hand, the Executor would be required to seek court approval for every major action in the estate, including the following:
Because of the added expense and time related to supervised administration, most estates are now administered under independent administration, and most wills now expressly direct for the estate to be administered under independent administration. Supervised administration is typically only used in litigated estate situations.
How does an Executor actually handle the personal and real property in an estate?
As we learned above, the Executor of an estate in Illinois has the duty to collect and inventory all of the assets of the deceased person. But how does the Executor actually do this? Let's take a closer look.
When the estate has been opened and the Executor has been officially appointed, it is important for the Executor to immediately open an estate bank account to receive all liquid funds in the estate, and to pay the estate bills accordingly. This is like a master account for the estate. Once this account has been set up, the Executor should proceed to liquidate as much of the estate assets as possible and deposit the funds into this master estate account. This could include proceeds from other bank accounts, life insurance settlements, funds from the sale of estate property, etc.
In looking at the personal property in the estate, it is the Executor's job to value, divide, and distribute the items according to the terms of the will. Because this is a gray area in the estate administration process, Executors are given a great deal of latitude in how this is actually done. Any tangible personal property in the estate with no value to any interested party can simply be donated or thrown away.
With regard to the real property in the estate, it is the Executor's duty to make sure the property is properly secured and insured. Also, if no provisions are made otherwise in the will, the Executor must then seek to list and sell the real estate on the open market. The proceeds from the sale are then deposited in the estate bank account until the time for ultimate distributions to the beneficiaries of the estate.
Does an Illinois Executor have any power under the law prior to being formally appointed as the representative by a probate court?
After a person has died and before an estate is opened in court, the Executor has a certain number of limited powers under the Illinois Probate Act. 755 ILCS 5/6-14 reads as follows:
Before issuance of letters to an executor his power extends to the carrying out of any gift of
the decedent's body or any part thereof, to the burial of the decedent, the payment of necessary funeral charges and the preservation of the estate; but if the will is not admitted to probate, the
executor is not liable as an executor of his own wrong, except for his refusal to deliver the estate to the person authorized by law to receive it or for waste or misapplication of the
Thus, prior to his/her formal appointment by a probate court, an Executor has the power to arrange for anatomical gifts, the burial or cremation of the deceased person’s body, the payment of funeral expenses, and to take any necessary steps to secure the estate prior to administration. In order to be empowered with the full authority under the will of the deceased person and under Illinois probate law, the Executor will need to proceed to open an estate and be officially appointed as the representative by the local probate court judge. Therefore, the named Executor under a will should refrain from attempting to perform the more complicated steps in the estate administration process until the formal probate estate is opened in court.
What specific powers does an Executor have once he/she has been appointed by a probate court?
Once the Executor has been formally appointed as the representative by the local probate court, he/she will have extensive powers to administer the estate. Aside from any specific powers listed in the will, the Executor (or Administrator, if there is no will) will have a number of specific powers listed in the Illinois Probate Act. Under 755 ILCS 5/28-8, several powers are expressly stated, including:
Additionally, as stated above, the deceased person’s will can also give specific powers to the Executor to administer estate assets, including detailed instructions regarding complicated asset transfers or specific bequests (specific gifts granted under the will).
How does an Executor make final distributions under the will?
After collecting all estate assets and paying the final debts of the estate, the Executor will be ready to make final distributions under the will (assuming all proper notices have previously been made in the estate). If the estate assets exceed the final debts of the estate, then the estate is solvent, and distributions can be made accordingly. If the estate does not have sufficient assets to fully pay the final debts, then the estate is insolvent, and the beneficiaries under the will will likely not receive anything from the estate.
If the estate has sufficient assets for distributions, the Executor will need to complete his/her final accounting with proposed distributions to the beneficiaries, and will need to send proper notice of the final accounting to each beneficiary. The Executor will also need to send a receipt to each beneficiary for his/her signature, which will effectively acknowledge that his/her share is accurate and acceptable according to the proposed distributions of the Executor. Upon receiving back all signed receipts from each of the beneficiaries of the estate, the Executor can then forward all distributions to the beneficiaries.
Also, it is important to note that specific bequests in a will trump the general residuary distribution terms. Thus, if the estate lacks sufficient assets to make all specific bequests as well as to provide a general residual distribution to the listed residuary beneficiaries, the Executor will make all specific bequests first, leaving the possibility that the general residuary beneficiaries may not get anything.
What happens if an Executor is not doing his/her job?
Sometimes in an estate, the court-appointed Executor simply fails to properly do his/her job in administering the estate. What then?
According to the Illinois Probate Act, on the petition of any interested party to the estate, the Probate court can remove an Executor for failing to properly administer the estate (755 ILCS 5/23-2). Typically, the violation(s) by the Executor must be fairly egregious, as the Probate court will usually give the benefit of the doubt to the appointed Executor. This "benefit of the doubt" comes from the presumption that the deceased person knew best who he/she wanted as the representative of his/her estate, and the Probate court will do its best to honor that wish.
Is an Executor compensated for his/her time handling estate matters?
When an individual serving as the Executor performs his/her duties competently, that individual is entitled to a reasonable fee for his/her time. While there is no hard-and-fast rule about exact compensation, the Probate court will determine reasonableness by weighing such factors as the time spent handling the estate affairs, the complexity of the estate, the benefit provided to the estate, etc. Ultimately, if no objections are made to the Executor's proposed fees by the interested parties to the estate at the end of the administration period, the proposed fees will be deemed reasonable by the court.
Case Study: Poorly-drafted Will Complicates Estate for Executor
Carol hired our firm shortly after her mother passed away in the greater Chicago area. Carol was the named Executor in her mother’s Will, which had been drafted by an out-of-state attorney. While Carol’s mother’s estate was not large, and did not have any complex asset holdings or estate debts, the estate administration was anything but normal. In particular, because of the terms of the poorly-drafted Will, the probate estate became much more complicated in its administration.
Because of our many years of experience representing Executors with various Wills ranging from the simple to the complex, we were able to skillfully determine the proper course to take in helping Carol to administer the estate as the Executor. This even included at one point hiring an expert in financial valuations to properly value a complicated real estate distribution in the Will. In the end, even though the estate process was complex, we were able to put Carol’s mind at ease by guiding her at every step of the way, ultimately resulting in a reasonable settlement of the estate.
Hiring an Attorney for an Executor
Due to the inherent complexities involved with the Probate process and the potential liability for the Executor if an estate is mishandled, it is important for an Executor to hire a competent Probate attorney to guide him/her. Because of the attorney's importance to the estate, many wills contain provisions for the proper hiring of professional help for the Executor of the estate. By hiring an experienced Probate attorney for the estate, an Executor can receive sound advice regarding the handling of estate assets, claims against the estate, final distributions, inventories and accountings, the appropriateness of fees and costs related to an estate, and issues with the Probate court procedures. Thus, a skilled Probate attorney can provide invaluable assistance to the Executor, particularly in a tricky or complicated estate.
Contact our Firm
Our firm has helped many Executors with routine and complicated Probate estates across the Chicagoland area. 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