Illinois Probate FAQ
1. I have been named as executor in a will for an Illinois decedent, but I am not a resident of Illinois. May I still serve as executor?
Yes! An individual need not live in Illinois to serve as executor or administrator of an Illinois probate estate. An additional requirement placed on a non-resident estate representative is the designation of a “resident agent” for service of process. The Law Offices of Jeffrey R. Gottlieb, LLC, generally serves as resident agent for its non-resident estate representative clients. The qualifications to serve as an executor or administrator are: 1) individual is 18 years or older; 2) a United States resident; 3) not a convicted felon; and 4) not under a legal disability.
2. Does every estate have to be probated?
No. Illinois probate is generally necessary when the aggregate value of the decedent’s personal estate (all assets other than real property) is valued at $100,000 or more. See Small Estates for when probate may and may not be bypassed for estates valued under $100,000. Additionally, real estate held in a decedent’s sole name normally must be probated, though a title company’s bond in lieu of probate may sometimes provide an alternative.
3. Do I need to file the Will if opening a probate estate is not necessary?
Yes! Illinois statute requires any person holding a decedent’s Will (and codicils) to file the Will with the clerk of the court in the decedent’s last county of residence. Under Illinois law, any person who willfully destroys or alters a decedent’s Will or hides it for more than 30 days may be found guilty of a Class 3 felony. This does not mean that a Will cannot be filed after 30 days — it can be filed at any time. Keep in mind that filing is not the same as probating. Filing simply means turning over the original Will to the applicable County Clerk’s office. Probate requires the additional step of filing a petition, plus other required documents. Simply filing a Will does not obligate a person to probate the estate or to take any further action, though such action may be desirable depending on the situation.
4. Which courthouse does the Will get filed with?
The proper venue for filing a Will and opening the decedent’s probate estate is generally at the courthouse in the county where the decedent last resided and intended to remain. Additionally, real estate must be administered separately in each state where real estate is situated. For example, if an Illinois resident decedent also owned Florida real estate in his/her sole name, then that property must be dealt with under Florida probate law and in most cases requires the administration of an “ancillary” probate estate in Florida. The Law Offices of Jeffrey R. Gottlieb, LLC, handles ancillary Illinois probate for non-resident decedents. Ancillary probate may be effectively avoided by estate planning with a funded revocable living trust.
5. How do I obtain a copy of a decedent’s filed Will?
After a person has died and the Will has been properly filed, then it becomes public record and anyone can obtain a copy of the filed Will from the Clerk of the Circuit Court where the Will was filed (i.e. where the decedent last resided). You may be able to make yourself a copy directly at the courthouse or request that a copy be mailed to you. Contact the appropriate courthouse for instructions.
6. There is no Will. Who gets to serve as administrator of the estate?
When a person dies without a Will, the estate is administered according to state intestate laws. Illinois intestacy law provides an order of preference to determine who is entitled to serve or to nominate an administrator. The order of preference to serve or nominate is, in part: (a) the surviving spouse; (b) legatees under the Will, if any, with preference to children who are legatees; (c) children; (d) grandchildren; (e) brothers and sisters. When two or more persons with equal preference desire to serve, the Illinois probate judge hearing the case has the discretion to name one or more of them to serve.
7. What if nobody is willing to serve as administrator of the estate?
Each county has its own Public Administrator, authorized by Illinois statute, to handle such situations. Click here for the Cook County Public Administrator website.
8. I am named as a beneficiary, but I do not want to accept the inheritance, what should I do?
You should consider executing a “Disclaimer”. Disclaimers sit at the intersection of state property law and federal tax law, and must be prepared carefully to comply with both sets of regulations. Property that is disclaimed will then pass as if the disclaimant had predeceased his or her benefactor. For best results, disclaimers should be executed within nine months of the bequest or gift and must be made prior to accepting any benefits. Since the property and tax law requirements are numerous and non-intuitive, you should consult with an estate attorney as soon as possible if you are considering the use of a disclaimer.
9. I was caretaker for a relative. Am I entitled to any compensation?
Possibly. Illinois law allows for a special type of claim for caretakers entitled “statutory custodial claim” (755 ILCS 5/18-1.1). In order to qualify, the caretaker must be a close family member (spouse, child, sibling, parent) that has cohabitated with, and cared for, the (at least 25%) disabled person for at least three years. The statute provides for “minimum” claim awards ranging from $45,000 to $180,000, but these amounts can be increased or reduced by the judge or jury based on a number of factors. These claims often raise a whole host of issues, are very fact-intensive and can be very contentious. If you don’t qualify for a statutory custodial claim, you may otherwise have a claim for personal services depending on the situation.
10. Is there any way to probate an estate if the identity of the decedent’s heirs is unknown or if they can’t be located?
Yes. The person asking to become representative must file an affidavit stating who the decedent’s heirs are. If the identity is unknown, the affiant must inform the court and arrange for newspaper publication for these unknown heirs. Likewise, if an heir’s whereabouts is unknown, the estate representative must arrange for notice by publication.
11. Is an executor entitled to compensation?
Yes. Every executor and administrator is entitled to receive a reasonable fee for his or her services. What is “reasonable” will depend entirely on the circumstances and should be discussed with the probate attorney early in the process. Ultimately, if contested, the probate judge has the final say on what is and what is not a reasonable fee. An executor’s (or trustee) fee will be taxable income to the executor or trustee.
12. If I am named in a Will as executor, do I have to serve?
Certainly not. Nobody is required to serve as executor. Indeed, you should carefully consider whether to undertake the responsibility, which may be significant both in terms of time spent and fiduciary duties owed to the beneficiaries.
An executor is entitled to expend estate funds to be represented by an attorney. If you are considering acting as an estate representative for an Illinois probate estate, feel free to contact us at (847) 991-2250 for a free initial phone consultation to discuss representation.
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