The Probate Process in Illinois

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When is Illinois Probate Necessary?

The probate division is tasked with overseeing court cases to administer the estate of deceased individuals (also known as the “decedent”).

For example, if Person A passes away owning no real estate and having various bank accounts with an aggregate value of $250,000, probate is likely necessary. If Person B passes away having no assets to their name other than their home, a probate process is likely necessary as well. 

The court’s objective is to appoint an individual, usually named by the decedent if there is a will, to dispose of any property and claims on the decedent’s estate.

The purpose of these proceedings is to ensure the decedent has no outstanding liabilities which remain unsettled and to distribute their property in accordance with their wishes.

What Happens When Probate is Necessary in Illinois?

Once you’ve determined that a probate case will be needed in order to settle the decedent’s affairs, the next step is to file the case.

In Illinois, the proper venue for where said case is filed is in the county where the decedent resided at the time of their passing, regardless of where the executor resides. If the decedent passed away with a will, the estate is considered a “testate estate.” If the decedent passed away without a will, the estate is considered “intestate.”

In the former, the will is filed with the circuit court clerk’s office and then a petition is filed to appoint an executor and issue letters of office. In the latter, there is no will to file so the first pleading is a petition to appoint an administrator and issue letters of office.

What Happens When an Illinois Probate Case is Filed?

After the case is filed, the estate’s representative has certain requirements before the case can be closed.

1.     Notice must be sent to all potential heirs and legatees informing them of the date, time and place for appointment of the executor/administrator (“legal representative”).

a.     Heirs are any parties entitled to take property of the estate pursuant to law, typically a surviving spouse and children.

b.     Legatees are any parties entitled to take property of the estate pursuant to an estate plan.

       i.     For example, Party A dies leaving a spouse and two children. Spouse and both Children would be considered heirs. However, Party A left a will that leaves their estate in equal shares to spouse, both children and a Cousin. Cousin is a legatee of Party A while Spouse and the Children are both heirs and legatees.

2.     Once the legal representative is appointed, notice must be published pursuant to statutory guidelines in a local newspaper (relative to the decedent’s final residence) giving notice to any creditors of the estate and providing information on how to file their claim(s).

3.     An inventory is prepared by the legal representative which includes any and all property that would be subject to the probate proceedings, used to settle claims and, ultimately, distributed to the estate beneficiaries.

4.     An accounting is prepared by the legal representative that sets out the total assets available to the estate, the total claims to be paid by the estate and the remaining assets to be distributed to the estate beneficiaries. 

5.     The inventory and accounting are presented to the beneficiaries and, if approved, is presented to the court for final acceptance and closing of the estate. 

Alternatives to Illinois Probate

Small Estate Affidavits in Illinois

Where an individual passes away but does not meet the requirements to open a probate proceeding, the Illinois Probate Act provides guidance for such an occurrence.

The Illinois Probate Act provides a statutory Small Estate Affidavit for, as the name suggests, smaller estates which do not subject themselves for court supervision.

Specifically, if the decedent passes away with less than $100,000 in assets and having no interest in real estate, the estate can likely be administered via a Small Estate Affidavit. That being said, it’s important to consult with an attorney before administering the estate via affidavit as errors or omissions in the affidavit can subject the affiant to certain liability. 

Illinois Estate Plans that Avoid Probate

It is just as important to have an attorney review the decedent’s full estate plan (where applicable), rather than just the will, as a properly executed estate plan can potentially avoid probate all together or, at the very least, remove some assets from the probate court’s supervision, including both personal property and real property. 

Consulting with an estate planning lawyer, whether related to a probate proceeding or on creating/amending your own estate plan to better avoid probate, has the benefit of saving time and costs down the road where those assets may be wrapped up in court proceedings and inaccessible to your beneficiaries until the case is finalized.