Also See Probate FAQ

There are three separate basic types of Illinois probate proceedings:

1. Decedent's Estate -- To administer the assets of a decedent;
2. Minor's Estate -- To administer and manage assets owned by a minor (in Illinois, under 18 years of age); and
3. Disabled Adult's Estate -- To manage the assets of an adult, who, because of mental or physical disability, is unable to make decisions and/or care for themselves.

The common theme running through each of these proceedings is the necessity of appointing a representative to act on behalf of someone else - because they are deceased, underage or disabled.

The remainder of this page deals with decedent's probate estates in Illinois.

To Probate or Not to Probate

The threshold question in administering a decedent's assets is whether or not to open a formal probate estate.  This question is largely answered by reviewing and valuing the decedent's assets as of the date of death and, most importantly, ascertaining how all assets are titled.  Generally, the potential probate estate consists only of assets titled in the decedent's sole name, payable to the decedent's estate and real property held as tenants in common.  In certain instances, joint tenancy property may also be treated as a probate asset.  Assets titled in a trust, assets subject to a valid beneficiary designation and most joint tenancies do not pass under the Will and are not subject to the probate estate.

For an Illinois decedent, if the total aggregate value of all probate assets exceeds $100,000 or if there is any real estate, a probate estate is going to be necessary to deal with the assets.  If the total estate is valued at less than $100,000, a small estate affidavit may be used to bypass probate (But, read here for more on small estate affidavits and when they may be inapplicable or inadvisable).

It should be noted that having a Will neither avoids nor causes probate.  The necessity of probate generally depends only on the value and title of the decedent's assets. 

Purpose and Intent of Probate

Probate is the court supervised process by which a representative is appointed to collect a deceased person's assets, pay the decedent's debts and distribute the balance to the those entitled to receive.  Probate law is governed primarily by state law, and secondarily by applicable local county procedure.  The persons entitled to receive the estate are those identified in the decedent's last valid Will, or if none, then under state intestate succession law.  Probate law is primarily a statutory scheme that lays the groundwork for the procedure of settling estates.

Intestate vs. Testate Estates

There are two basic types of probate estates: (1) intestate; and (2) testate.  An "intestate" estate is the procedure used when the decedent did not leave a valid Will.  A "testate" estate is used when the decedent does leave a valid Will.  The primary difference is that for a testate estate, the Will controls who (the "legatees") receives the decedent's assets and who runs the estate (the "executor"); in an intestate estate, state law dictates who is entitled to the estate (the "heirs" under the Illinois statute on "descent and distribution" -- read it here) and who is entitled to run the estate (the "administrator").  Another significant difference is that a Will can waive the executor's requirement to purchase a "surety bond".  This requirement cannot be waived or excused when there is no Will, making the probate process more costly for intestate estates.  A surety bond is also required when no executor designated in the Will is willing and able to act, in which case state law dictates who has preference to serve as the "administrator with will annexed". 

Opening the Estate

After the Will, if any, has been filed with the clerk of the court, the Illinois probate process may begin with the filing of a "Petition for Letters of Administration" (for intestate estates) or a "Petition for Probate of Will and for Letters Testamentary" (for testate estates) in the county where the decedent resided.  The Petition is filed by the person seeking to act as, or appoint, the representative.  A filing fee is paid, court date is set and several other required documents must be prepared and filed (inlcluding an affidavit of heirship and the oath & bond of the representative).  Unless a qualified designated executor files the Petition, or unless waivers are obtained, prior notice of the court date must be given to the decedent's legal heirs.

At the initial court appearance to open the estate, the probate judge reviews the paperwork to ensure that all necessary documents have been properly filed and all disclosures and notices have been given.  If there is a Will, the judge reviews the Will to determine whether it appears to comply with the statutory requirements for a validly executed Will.  If everything is in order and there are no objections, the judge will enter an Order opening the estate, appointing the representative and ordering "Letters of Office" to issue.  Letters of Office is the (one page) court-sealed document that serves to notify third parties holding a decedent's assets that a person has died and a representative has been appointed to act on behalf of the estate for all matters.  Without this document, assets titled in a decedent's sole name cannot be accessed (unless a small estate affidavit is able to be used).

Court Supervision and Involvement

There are two procedural methods of Illinois probate administration: (1) supervised administration, and (2) independent administration.  Supervised administration requires prior court approval for most actions taken by the representative.  Independent administration allows the representative to take most actions without prior court approval.  Because the process is less burdensome, most estates are administered independently.  However, if the estate is contested or if there are objections, supervised administration may be used or demanded.  Many uncontested independent estates require only two court appearances by the estate attorney -- to open and close the estate.  Any interested party may bring any issue arising during administration in front of the judge.  The remainder of this page will generally deal with independent administration.

Claims Filing and Payment Procedure

After the estate is opened and letters of office have been issued, the representative should publish notice of probate in an appropriate newspaper (Cook County estates may use Law Bulletin).  This serves the very important function of helping to ensure that claims of potential creditors against the estate are time-barred if not properly filed within six months after the first publication date.  Additionally, in order for the six-month limitation to apply, the representative must also give actual direct written notice to any and all "known or reasonably ascertainable" creditors. If proper publication and notices are given, then any claims not properly filed within the allowable six-month time period will be automatically and forever time-barred, regardless of their substantive validity.  Timely filed claims can then be classified according to statutory preference and disposed of by the representative, either by disallowing the claim (in which case the claim may be litigated in court to determine its validity), settling the claim or paying the claim in full.

Rights/Notice of Heirs & Legatees

In addition to creditors, everyone named as a beneficiary in the Will (the "legatees") and everyone who would receive a share of the Estate if there was no Will (the "heirs") are entitled to receive notice that the estate has been opened and a statement of their rights.  Among these rights is the right to demand a formal proof of the Will (must be demanded within 42 days of admission to probate), the right to contest the Will (must be filed within 6 months after admission to probate) and the right to request, or in some cases demand, supervised administration.