How does Illinois Probate law work?

Under Illinois law, Probate is the legal court process of administering the estate of a deceased person.  This is done by resolving all claims related to the estate and by distributing the deceased person's property under a valid will or under the Intestacy laws of the State of Illinois.  And while many attorneys have attempted to promote the myth that Illinois Probate law is bad, and that the process should be avoided at all costs, Illinois Probate procedures are typically very straightforward and routine.  


What steps are involved in the Probate process in Illinois?


When someone dies in Illinois and a Probate is deemed necessary, there are several steps that will need to be done to complete the Illinois Probate process. First, if the person (the decedent) dies with a will, the named Executor should ensure that it is properly filed at the local county court clerk's office. The Executor should then proceed to start the Probate process by filing a petition with the local Probate court to open the estate and have the will probated.  If the decedent did not have a will, the person seeking to serve as the representative of the estate can simply file a petition to administer the estate according to the Intestacy laws of Illinois.


Next, when the petition is filed, the local Probate court will determine the validity of the deceased person's last will and interpret the instructions under the will.  And if no will exists, the Probate court will proceed to oversee the administration of the estate under the Illinois Intestate Succession laws.  The Probate court will also officially appoint the representative (whether the named Executor, or an administrator when there is no will) for the estate.


Once the estate has been opened and a representative has been appointed, all heirs, legatees, and known creditors will be formally notified of the Probate proceeding (if they have not already been notified up to this point).  It is the duty of the representative of the estate to ensure that this has been properly done.  In addition to the formal notices above, the representative must also publish what is known as a "claims publication" in a local legal newspaper.  Unknown creditors and claimants of the estate then have six months from the date of the publication to file claims against the estate, or their claims will be barred.


After taking care of the notice requirements, the representative of the estate must begin working on collecting and inventorying all of the decedent's assets, and determining the decedent's final debts and liabilities.  This is the part of the Probate process which usually takes several months to complete.  Once all assets have been collected and debts paid (including any final estate-related taxes), the representative must do a final accounting to the beneficiaries of the estate and make distributions according to the decedent's will or the Intestacy laws of Illinois. After the beneficiaries have received their shares (if any) of the estate and have approved the final accounting of the representative, the estate is then ready to be closed.  Assuming the six-month claims period has run, the representative can petition the court to close the estate.


Overall, the Probate process in Illinois will typically take at least six months (for the running of the claims period), and can sometimes last several years (if there is estate litigation or complex asset transfers). 


To learn more about the various issues related to Probate in Illinois, visit our Frequently Asked Questions pages.  To learn more about the local Probate courts in the Chicagoland area, check out the pages listed on the left-hand sidebar of this page.


When is the Probate court process needed in Illinois?


The formal Illinois Probate court process of administering an estate is generally only necessary when the value of the personal estate exceeds $100,000.00, or when the estate contains real estate needing to be administered.  When an estate is under the $100,000.00 threshold and no real estate is involved, it can typically be handled out of court by using an Illinois Small Estate Affidavit form. 


It is also important to note that any property held in trust, held jointly with a surviving owner, or any account naming a living individual as a beneficiary, does not pass through a deceased individual's probate estate.  Instead, the trust property passes directly to the beneficiaries (according to the terms of the trust), the jointly held property passes directly to the surviving joint owner, and an account naming a living individual as a beneficiary passes property directly to the living beneficiary.


If you would like to learn more about the Illinois Probate requirements, visit our page on when Probate is necessary in Illinois


What costs are involved with an Illinois Probate estate administration?


In order to probate an Estate in Illinois, there will likely be several costs that will have to be paid throughout the administration.  Attorney’s fees for the attorney representing the Executor or Administrator are an estate expense.  If there is no will and an Administrator is serving as the representative, the Administrator will likely need a surety bond to ensure his/her performance as the representative of the estate; the surety bond premium is an estate expense.  Also, the Executor or Administrator can charge a reasonable fee for his/her time spent handling the estate, and can receive reimbursement for any personal expenditures (travel expenses, hotel costs, etc.) that were made in order to administer the estate.  In addition, court filing fees to open the estate are also estate expenses that must be paid from estate funds.  


On the other hand, debts of the estate (such as unpaid medical bills of the deceased person) are not costs of the estate administration.  The debts of the estate are paid after the costs of the estate administration are paid from the estate funds.


How are assets retitled through the Probate process?


Once an Executor or Administrator is appointed by the Probate court, he/she is empowered under Illinois law to act as the official representative of the estate.  Thus, the Executor or Administrator essentially “steps into the shoes” of the deceased person to fulfill contract obligations, pay debts, and retitle assets.  When an asset needs to be retitled then, the Executor or Administrator will be able to handle the asset as the original owner would have, and will be able to sign off on any transfer as the “seller” or as the “Executor/Administrator of the Estate”.  Doing this, combined with providing a certified copy of the Letters of Office, will allow the Executor or Administrator to transfer title on real estate, vehicles, tangible personal property, and financial accounts.


What is the priority for distributions in a Probate estate in Illinois?


Many people believe that heirs and legatees of an estate receive the entire estate after someone passes away.  This, however, is not how a Probate estate is distributed. 


First, all estate administration expenses must be paid from the estate funds.  Next, any outstanding debts (including taxes, funeral expenses, etc.) of the estate must be determined and paid.  Then, any surviving spouse’s awards or child’s awards must be paid as required.  After this, the specific bequests under the will of the deceased person (if there was a will) are made.  And finally, if there are any remaining estate assets, then these funds are distributed pursuant to the residuary terms of the will or the Intestacy laws of the estate of Illinois.  Thus, many disbursements are made prior to when the ultimate general beneficiaries of an estate receive their distributive shares.


Case Study:  Adult Daughter Needed Help with Mother’s Complex Probate Estate


Oftentimes, our firm has been called upon to handle complicated estates.  For instance, when       Sandy’s mother passed away in Cook County, her mother left Sandy a part ownership interest in a piece of real estate in DuPage County that her mother had inherited from Sandy’s                 grandmother.  To complicate matters further, Sandy’s grandmother (who had predeceased             Sandy’s mother) inherited the real estate from a friend two decades earlier, but the transfer           from the friend to the grandmother was never properly made. 


After researching her options, Sandy contacted and hired our firm to help her with this complex probate matter because of our extensive experience in probate law, and our experience in the probate courts in multiple counties in the Chicagoland area.  When we stepped in, we acted quickly to reopen the probate estate of her grandmother’s friend in DuPage County, and helped to save the real estate from being lost due to the impending sale of its delinquent property taxes.  We were also able to help Sandy to resolve the reopened estate, her grandmother’s estate, and her mother’s estate.  In the end, Sandy was able to properly receive her share of the real property from her mother’s estate.    


Contact our Firm


Our firm has helped many Executors and Administrators with routine and complicated Probate estates across the Chicagoland area, including in Kane, DuPage, 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!

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The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789

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