The probate process in Illinois is an unknown and confusing process for most individuals having to navigate it. Whether the deceased has a will or trust and the assets in the estate will determine the path we take on how to handle their probate case.
If, after our initial meeting, we determine the probate process is necessary to distribute the deceased’s assets, the first step is for our office to file a petition with the probate court. The purpose of the petition is to request a judge officially appoint someone as administrator or executor. If the decedent left a valid will, generally it is the responsibility of the named executor to retain an attorney to file the petition on the executor’s behalf. That is if there is a will. What if the decedent didn’t have a will? In that case, the decedent’s probate case is referred to as an intestate estate. For this type of probate case typically someone (a close family member such as a spouse, child, or sibling) volunteers to be the administrator of the estate. He or she must then complete, sign and file the petition requesting a judge to appoint him or her as the administrator of the estate.
Certain people are entitled to written notice that a petition for probate of an estate has been filed and request to become the administrator made. Once notice has been made, if there are no objections, the court will appoint the “administrator” who is then in charge of liquidating and distributing the decedent’s assets. *When a decedent dies intestate, any individual may petition the court to be appointed as administrator, however, the surviving spouse (if any) has preference, followed by children then parents and siblings.
Before the court will open the probate case, additional specific documents must be completed and filed. The required documents are dictated by what type of probate case you are filing (testate or intestate, i.e. with a will or without), however, below are the most common:
- Petition seeking to admit the Will to Probate
- Affidavit of Heirship
- Affidavit of Eligibility
- Oath & Bond
Usually, there is language in wills that waives the insurance bond requirement. However, if there is no will admitted to court, Illinois law requires the administrator purchase an insurance bond. This is an insurance policy to cover the value of the estate in the event the administrator steals funds from the estate. The bond can be expensive to purchase and anyone intending to file a probate case without a will should be prepared to pay this expense upfront and reimbursed at the end of the probate process from the estate’s assets.
Typically, uncontested estates in Illinois are administered independently, which means the Executor or Administrator may administer the estate without close court supervision. Unless the probate is contested, once the probate case has been opened, updates generally do not need to be made to the court, and the next time an appearance will be required is when the estate is ready to be closed.
After the estate has been opened, the court will mail Letters of Office or Letters of Administration to the attorney representing the estate. This is the document officially appointing the Executor or Administrator and is the proof he or she will need to produce to banks, financial institutions, etc. that he or she has been appointed by the court and has the authority to act on behalf of the estate. This is the document that will allow the Executor or Administrator to gain access to the decedent’s accounts, sell real estate, etc.
Next, the Administrator or Executor will have to publish a legal death notice. It is a notice that must be published one day each week for three consecutive weeks, in a newspaper that circulates in the county where the estate is being administered. At this point, the Executor must mail or deliver a similar notice to each creditor known to the Administrator or Executor.
Once all accounts are accessed and creditors have been paid, the Executor is required to provide an accounting of the assets, receipts, and disbursements to all the heirs. This is a document that must be delivered to all interested persons of the estate.
The final step in the probate process is appearing in court one last time to close the estate. If you are working with my law office, we complete all the court paperwork and file it for you. If the Administrator or Executor has a good attorney representing them, he or she should never have to appear in court, so long as the estate is uncontested.