Out of all the areas of law, probate ranks near the top of those that ordinary people are likely to experience during their lifetimes. Though probate is commonly encountered, the Illinois probate process is shrouded in mystery—which often leads to fear, delay, and sometimes outright avoidance of filing the probate case. This article will explain the probate process as clearly as possible, discussing the more common steps in depth and briefly touching on those that occur in a smaller percentage of estates.
Probate is the formal in-court process of collecting a decedent’s (person who died) assets, notifying creditors of the death, settling claims, and distributing the remaining assets to heirs or to those designated in a will. Probate is typically initiated by a close family member or executor named in a will and should be initiated shortly after death. In small estates a less formal process may be available, which will be addressed later in this article.
This publication is designed to educate heirs on the workings of the Illinois probate process, but it is not intended to be a do-it-yourself guide and is not intended to be legal advice. All estates should have a lawyer, and those subject to formal probate must have a lawyer. The process is simply too complicated and the risks are too high to do it yourself. You can click here to schedule a free initial phone consultation with an Illinois lawyer.
The Steps Preceding Court
Notification of Death
The first step in the probate process is receiving notification that a family member or close friend has died. Handling probate is obviously not the first thing anyone thinks of when losing a loved one, but the financial consequences can quickly become a priority, especially in situations when the death is unexpected and the decedent was the primary breadwinner and left dependents. Contacting a probate attorney as early in the process as possible can provide a calm and experienced guide to assist with the steps leading up to probate and the probate process itself.
Decide Who Will Take Charge
Someone must take charge of every estate, and this person is formally called the “representative of the estate.” There are two broad types of representatives: executors, and administrators. If the decedent executed a will, the will likely named an executor and possibly even successor executors (those who will administer the will if the primary executor is unable or unwilling). If the decedent died without a will (called dying “intestate”), the court appoints an administrator to be the representative.
There is no duty to be an executor, even when named in a will; in some cases, especially those involving older wills, the named executor may even be unable to act—commonly due to his or her own death or loss of mental competence. If the named executor is unable or unwilling to serve, the successor named in the will serves as representative. In cases where no executor or successor executor is able and willing to act, and also in cases where the decedent died without a will or when a will does not name an executor and/or successors, Illinois law designates who has the power to nominate a representative to take charge of the estate.
The formal legal rules for appointing a representative are designed to cover all situations, even those where the decedent has few or no close family members. There are a number of priority classes that are used to do this. In most cases, the court will not need to go beyond the first six priority classes, so the additional classes have been omitted from the discussion here. To see the full list of classes, reference 755 ILCS 5/9-3. The classes, in order of preference, are as follows:
1. The surviving spouse.
2. The legatees, with preference given to the children of the decedent that are legatees (legatees are people that benefit under a will).
3. The decedent’s children.
4. The decedent’s grandchildren.
5. The decedent’s parents.
6. The decedent’s siblings.
The priority order listed above gives a class of persons either the power to act as representative or the power to nominate some other qualified individual. There are only a few criteria that a representative must meet. He or she must:
1. Be at least 18 years old;
2. Be a resident of the United States;
3. Be of sound mind and not a person adjudged a “person with a disability” as defined by the Probate Act (mentally incompetent to handle the affairs of the estate); and
4. Not have been convicted of a felony.
Only a person qualified to act as the representative may nominate someone else to act as representative (for example, a felon may not act or nominate).
Ideally, the family and any legatees can come together to decide who will take charge. Disputes are one of the greatest cost escalators in probate, so families should avoid engaging in disputes and litigation whenever possible, including disputes regarding who should serve as representative.
Identify Perishable Property
Most estates do not contain significant perishable property (property that needs to be immediately preserved or addressed), but identifying any is an extremely important step. Failure to preserve perishable property can result in an enormous loss of value in a short period of time. If family members believe the estate might contain perishable property, they should contact a probate attorney immediately so emergency procedures can be used to save it.
Common types of perishable property include:
Stock Options: If the decedent was compensated with stock options (more common with higher level employees) or was an active stock trader, he or she may have volatile financial instruments. These types of investments commonly have an expiration date after which they become worthless, and tremendous value can be lost if they expire.
Agricultural Products: Farmers and small business owners that deal in foodstuffs may have assets that will literally spoil if not sold within a short time period.
Animals/Livestock: Whether pets or livestock, animals can’t go for long without care.
Business Contracts: Small business owners (especially solo owner-operators) often lack clear succession plans, and their death can lead to costly contract breaches and general chaos.
Real Estate: Some real estate is especially susceptible to spoilage; the most notable category is buildings in cold climates. If the heat is shut off in such buildings, pipes may burst and catastrophic damage may occur. Additional attention should be paid to buildings that use pumps to prevent flooding.
Property Requiring a Controlled Climate: Some collections, like art, furs, and fine wine, require a controlled climate to prevent them from losing value. Depending on the season, and especially during times of year with large temperature swings, action may be required to preserve these assets.
Gather Documents and Records
When a person dies, a significant amount of knowledge is lost; furthermore, the degree to which the decedent prepared for death varies greatly from estate to estate. There will be some unknowns in all cases, and in many, there will be a lot of unknowns. Having some knowledge of the estate’s assets and liabilities when you first meet with a probate lawyer will be helpful.
Clearly, if there was a will or a trust, that should be taken to your meeting with a probate lawyer. Financial documents are also helpful, as are documents that relate to ownership of significant assets such as business interests, real estate, stock, and life insurance.
Meet with a Probate Attorney
Though it is ideal to meet with a probate attorney as soon after the death as possible, you need to meet with one after informally selecting someone to take charge and gathering documents if you haven’t already. Probate isn’t a do-it-yourself endeavor as even simple estates have many technical rules and potential for liability. I have written articles on the cost of probate in Illinois and avoiding probate in Illinois (even when avoiding probate, you should still have a lawyer to handle the estate) to address some uncertainty about probate and working with a lawyer.
Formulate a Plan
With the assistance of your probate attorney, you will formulate a plan. Probate can be avoided altogether in some cases, but in most cases, the smartest route to take is the formal probate process, even if it costs a little bit more.
The attorney will ask you plenty of questions, address your concerns, talk about idiosyncrasies of the estate, and discuss possible complications. Once the plan is laid out, the formal probate process will begin.
Opening the Probate Estate and the Formal Probate Process
The formal probate process is complex and varies significantly from estate to estate. The remainder of this article will take you through the most common steps and attempt to answer frequently asked questions.
In Illinois, probate estates require an attorney. This is for good reason, administering an estate is complex and the consequences of a mistake can be severe. Click here to schedule a free initial phone consultation with CTM Legal Group.
Where Probate Will Take Place
The probate process generally takes place in the county where the decedent lived at the time of death.
If the decedent has no known last place of residence within the State of Illinois, the probate process will take place in the county where most of the real estate owned by the decedent is located. If the decedent did not own any real estate at the time of death, probate will be in the county where the majority of the decedent’s personal property is located at the time of death.
Filing the Will
If the decedent had a will, it is to be filed with the clerk of court in the county where the decedent resided at the time of death. The will should be filed within 30 days of death, but in many cases, a will is found after the deadline; it is also possible for other circumstances to cause a delay. Filing a will after the deadline is common, but hiding or destroying a will is a crime. If you miss the deadline, talk to your attorney and file the will expediently.
Opening the Estate
In order to open the probate estate, the person requesting to be the representative prepares the following documents for the court, each of which will be discussed more fully below:
1. Petition for Letters of Office;
2. Oath and bond of representative;
3. Affidavit of heirship; and
4. Order declaring heirship.
The Petition for Letters of Office
The Petition for Letters of Office is the proposed representative’s (called the “petitioner”) formal request that the court appoint him or her as representative of the decedent’s estate. It is generally the first step in the formal probate process in Illinois.
Typically, the Petition for Letters of Office is straightforward and does not result in conflict. That said, in rare cases multiple family members may file competing petitions, which can result in a formal hearing to determine the representative.
There are three primary forms of a Petition for Letters of Office. They are the Petition for Letters of Administration, Petition for Probate and for Letters Testamentary, and Petition for Probate of Will and for Letters of Administration with Will Annexed. Though all three forms of petition share many similarities, it is important to know which document to file and who must receive notice of filing.
Petition for Letters of Administration
The Petition for Letters of Administration is the document that is used when the decedent died without a will. The petitioner will usually be a close family member in accordance with the priority classes summarized in the “Deciding Who Will Take Charge” section.
The Illinois Probate Act sets forth requirements for the Petition for Letters of Administration.
According to the Illinois Probate Act, the petition must be filed with the court in the proper county and must state:
1. The name and place of decedent’s residence at the time of his or her death;
2. The date and place of the decedent’s death;
3. The approximate value of the decedent’s real estate and personal estate located in the State of Illinois;
4. The names and mailing addresses of each of the decedent’s heirs, identifying whether each one is a minor or a person with disability and also identifying whether any heir is entitled to nominate a person to administer with equal or greater preference than the person petitioning for Letters of Office;
5. The name and mailing address of the person nominated as administrator;
6. The facts evidencing the right of the petitioner to act as administrator or nominate an administrator;
5. The reason for issuance of letters of administration de bonis non, if applicable; and
6. In all cases other than supervised administration, the name and address of any personal fiduciary acting or designated to act to protect the interest of a person under legal disability.
Service of the Petition
When a Petition for Letters of Administration is filed, notice of the petition must be given to certain people, who are identified in the sections below, unless the petitioner has obtained waivers of notice. Notice must be given to allow a challenge to the petition and to notify heirs that the court has appointed a specific person to be in charge of the estate. There are two times notice must be given.
Notice Before Hearing on the Petition
At least 30 days before the hearing on the Petition for Letters of Administration, the petitioner must mail the petition to each person who is entitled to administer or nominate at the same or greater priority level than the petitioner. The mailed petition must be stamped with the time and place where the hearing is scheduled. This provides an opportunity for any person in the same or higher priority class as the petitioner to challenge the petition.
Notice After the Order Granting Letters of Office Is Entered
Once the court orders that letters of office be issued to the petitioner (in other words, the petitioner’s request to serve as representative has been granted), the petitioner has 14 days to mail a copy of the Petition for Letters of Administration along with the order showing date of entry to each of the decedent’s heirs that was not entitled to notice of hearing.
If the name or mailing address of an heir was not stated in the petition (unknown heir or known heir with unknown address), the administrator must publish notice. Illinois law requires that notice appear in a newspaper published in the county where the order was entered once a week for three successive weeks. The first publication of the notice must be made within 14 days of the date the order was issued. The publication is required to describe the order and the date the order was granted.
The administrator must also file proof of mailing the notice and proof of publication (if required) with the clerk of court.
The administrator does not need to mail the petition and order or publish notice to any heir that has filed a waiver of notice or who personally appeared in court at the hearing on the petition. However, this exemption from notice does not apply to heirs that are minors or heirs that are under legal disability.
The Cook County Petition for Letters of Administration can be found here: CCP N302. (Forms for other counties may be available on their clerk of court websites).
Petition for Probate and for Letters Testamentary
If there is a will and a named executor able and willing to act, the executor uses the Petition for Probate and for Letters Testamentary.
The Illinois Probate Act also sets forth requirements for the Petition for Letters Testamentary. These requirements are very similar to those for the Petition for Letters of Administration, but they have a few key differences.
The petition must be filed with the court in the proper county, and it must state:
1. The name and place of the decedent’s residence at the time of his or her death;
2. The date and place of the decedent’s death;
3. The date of the will and the fact that the petitioner believes the will to be the decedent’s last valid will;
4. The approximate value of the decedent’s real estate and personal estate located in the State of Illinois;
5. The names and mailing addresses of every heir and legatee of the decedent and whether each of them is a minor or person with disability;
6. The name and postal address of the executor; and
7. In all cases other than supervised administration, the name and address of any personal fiduciary acting or designated to protect the interest of a person under legal disability.
The Cook County Petition for Probate and for Letters Testamentary can be found here: CCP N315.
Petition for Letters of Administration with Will Annexed
In some estates that include a will, there is either no named executor or the named executor (and any named alternates) are unable or unwilling to perform their duties. This situation is most common when the named executor died before the decedent. In these instances, the person asking to be named administrator petitions for letters of administration with will annexed.
Like with the Petition for Letters of Administration, the priority classes set forth by Illinois law will dictate who has the right to act as administrator or nominate someone to act when there is a will but no executor able and willing to act.
In the case of the Petition for Letters of Administration with Will Annexed, the petitioner must comply with the requirements of the Petition for Letters Testamentary and also provide additional information that is similar to that required in the Petition for Letters of Administration. For convenience, the entire list of requirements is included below, though it is a bit duplicative of the lists associated with other petitions.
The petition must be filed with the court in the proper county and must state:
1. The name and place of the decedent’s residence at the time of his or her death;
2. The date and place of the decedent’s death;
3. The date of the will and the fact that the petitioner believes the will to be the valid last will of the decedent;
4. The approximate value of the decedent’s real estate and personal estate located in the State of Illinois;
5. The names and mailing addresses of every heir and legatee of the decedent and whether each of them is a minor or person with disability;
6. The name and postal address of the executor;
7. In all cases other than supervised administration, the name and address of any personal fiduciary acting or designated to act to protect the interest of a person under legal disability;
8. The reason for the issuance of Letters of Administration with Will Annexed (for example, executor is unable or unwilling to act);
9. Facts demonstrating the petitioner’s right to nominate or act as administrator;
10. The name and postal address of each person that is entitled to act or nominate with equal or greater preference to the petitioner; and
11. If the will was previously admitted to probate, the date the will was admitted.
If there are other persons entitled to nominate or act as administrator in a class equal to or greater than the petitioner, the petitioner must mail a copy of the petition to them and file proof of mailing with the clerk of court, just as required with the Petition for Letters of Administration.
The Cook County Petition for Probate of Will and for Letters of Administration with Will Annexed can be found here: CCP N316.
Oath and Bond
Along with the Petition for Letters of Office, the representative must sign and submit an oath of office. In many cases, the representative must also submit a surety bond, which is explained below.
The oath of office is a promise to faithfully discharge the duties of the representative according to law.
A surety bond is similar to insurance or a guarantee. The bonding agent (usually a bonding company) promises to pay up to a certain dollar amount if someone is harmed due to the representative’s misconduct. In Illinois, a bond is required unless bond was waived in the will or a licensed corporate representative acts as the representative of the estate.
When a bond is required, the amount will be two times the value of the personal estate if issued by someone other than a bonding agent or one-and–a-half times the value of the personal estate if issued by a bonding agent.
The Cook County Oath and Bond of Representative can be found here: CCP N312 (with surety) and CCP N313 (without surety).
Affidavit of Heirship
The affidavit of heirship is the most common method the court uses to determine the identity of the decedent’s heirs. It is typically presented along with the representative’s petition for letters of administration and the oath and bond.
The affidavit of heirship is a statement made under oath in which the affiant (the person making the statement), usually a close relative of the decedent, identifies the deceased’s kin based upon his or her personal knowledge.
Family structures don’t always follow traditional norms and the laws have been slow to catch up, but in a typical situation, the affidavit will state the following:
1. Whether the decedent was ever married and, if so, the identity of each spouse, whether the decedent and the spouse were divorced, and whether the spouse died prior to the decedent;
2. Whether the decedent had any children, natural or adopted, and, if so, the identity of the child’s other parent, whether the child is a minor or disabled, and whether the child died before the decedent;
3. If the decedent has a deceased child, the identity of any children of the deceased child (decedent’s grandchildren), whether each grandchild is a minor or disabled, and whether each grandchild has died before the decedent;
4. If the decedent has any deceased grandchildren, the same information stated in #3 for the children of the deceased grandchild; and
5. An itemized list that includes each of the decedent’s heirs based on the statements set forth in #1-4 and that person’s relationship to the decedent.
The affidavit can be more complicated in cases where the decedent was never married and never had any children, or in cases where the decedent was married, never had any children, and was preceded in death by his or her spouse. In those cases, the affiant and the affiant’s attorney must look more closely at the Illinois statute on intestate succession (determination of heirship). Though tracing far reaching lines of heirship is beyond the scope of this article, a few common situations are as follows:
Decedent dies with no living spouse and had no children, but does have living siblings and parents: The parents and siblings take an equal share of the estate, except that a parent receives a double share if the other parent is deceased. If a sibling died before the decedent, that sibling’s share goes to his or her descendants.
Decedent dies with no living spouse and had no children and no living parents, but has living siblings: Each sibling takes an equal share. If a sibling died before the decedent, that sibling’s share goes to his or her descendants.
Decedent dies with no living spouse and has no children and no living siblings, but has living parents: Each parent takes an equal share.
When evaluating the affidavit, the court can presume that no children were born out of wedlock and that male decedents did not acknowledge or legitimate any children born out of wedlock, so long as there is no evidence to the contrary.
Order Declaring Heirship
A draft order declaring heirship is generally submitted to the court along with the Petition for Letters of Office, oath and bond, and affidavit of heirship. If the judge finds the affidavit of heirship (or other proof of heirship) to be in order, the judge will sign the order declaring heirship.
Independent or Supervised Administration
When letters of office are issued, the judge appoints a representative as either “independent” or “supervised.” Supervised administration involves court supervision overall almost every step of the probate process. In contrast, independent administration allows the representative to act more freely and limits court involvement to issues brought to its attention by people involved in the estate. Though most estates were historically administered under supervised administration, independent is now presumed where the petition does not request supervised administration.
Independent administration has many advantages over supervised administration, not the least of which is fewer court appearances and, therefore, lower attorney fees. Additionally, an independent administrator does not have to file as many documents with the court as a supervised administrator. This is important because it keeps financial documents out of the court file, which is a public record.
There are certain circumstances where supervised administration will be required even if the Petition for Letters of Office does not request supervised administration. These situations are:
1. If the will expressly forbids independent administration;
2. If an interested person is a minor or person with legal disability and the court finds that the ward’s interests are not adequately represented so supervised administration is necessary to protect the ward’s interests; or
3. If an interested person objects to independent administration, except;
a. If the will directs independent administration, the court must find good cause for supervised administration; and
b. In the case of a creditor or legatee objector (other than a residuary legatee, which is the person that receives all the remaining estate after other gifts are distributed), the court will only order supervised administration if the court finds it is necessary to protect the objector’s interests; if so, the court may order other protection of the objector’s interests instead.
Because most estates are administered under independent administration, the remainder of this article will focus on independent administration, though it will include notes on supervised administration from time to time.
Presentment of Will and Admission of Will to Probate
As noted above, in estates that include a will, the executor has 30 days from the date he or she becomes aware of being named executor to either institute a proceeding to have the will admitted to probate or formally refuse to act as executor. If the named executor fails to initiate the proceeding by the 30-day deadline, the court may deny the named executor the right to serve as executor unless good cause is shown. If the court denies the right to act as executor, Letters of Office are issued as if the person named executor is disqualified.
The proceeding to admit a will to probate serves to assure that the basic requirements of a legal will are met.
Generally, every will in Illinois must be in writing and signed by the testator (person making the will) in the presence of two or more credible witnesses in order to be valid. The testator must be of sound mind and memory at the time of executing the will, and he or she must also be at least 18 years of age.
For the will to be admitted to probate, the basic requirements of a valid will must be proven. Typically, the will is proven by at least two witnesses to the will who certify that:
1. The witness personally saw the testator sign the will;
2. The will was attested to by the witness in the presence of the testator; and
3. The witness believed the testator was of sound mind and memory at the time of signing.
The witnesses may submit their testimony to the court via affidavit, attestation clause, in court testimony, or, in some cases, deposition.
If the judge is satisfied with the evidence, he or she will admit the will to probate.
Notice of Entry of Order Admitting or Denying Will to Probate or Appointing a Representative
Once an order is entered admitting (or denying) the will to probate or appointing a representative, the representative (or petitioner) must provide notice within 14 days. The notice must contain a copy of the petition to admit the will to probate or letters of office and a copy of the order that shows the date it was issued.
The notice must be mailed to each of the testator’s heirs and legatees whose names and addresses are on the petition, except to those who have either appeared in court at the hearing or filed a waiver of notice. Notice must be provided to people that are minors or people with disability regardless of their appearance in court or waiver of notice.
If an heir or legatee’s name or address is unknown, the representative or petitioner must publish notice once a week for three successive weeks describing the order and date of entry in a newspaper published in the county where the order is entered. The first publication must be made within 14 days of entering the order.
Formal Proof of Will
Any interested person may demand a formal proof of will. A petition for formal proof of will must be filed within 42 days of the order admitting the will to probate. Once the petition is filed, the court will set the matter for hearing, at which time the proponent of the will must prove that the will is valid. In the formal proof process, the will may not be proven by affidavit or attestation clause, so the witnesses must appear before the court or by deposition (in appropriate situations). After the hearing, the court will confirm the order admitting the will to probate so long as there is proper evidence establishing the will and there is no proof of fraud, forgery, compulsion, or other improper conduct. If the proponent of the will fails to prove the will, or if there is proof of fraud, forgery, compulsion, or other improper conduct, the order admitting the will to probate will be vacated.
Will contests are both complex and rare, so this article will not attempt to cover them in great detail.
If an interested person wishes to contest a will, that person has six months from the date the will is admitted to probate to file a petition to contest the will. This is a hard deadline, and potential petitioners should be aware that events and circumstances that normally toll (extend) the statute of limitations may not apply.
Generally, will contests are based on the following two theories, and it’s common for both to be pled in the petition:
1. Lack of testamentary capacity; or
2. Undue influence.
Lack of Testamentary Capacity
A will can be invalidated if the contesting party can prove that at the time the testator made the will, the testator did not have the mental capacity to know the natural objects of his or her bounty, know the kind and character of his or her property, and make a disposition of his or her property according to a plan created in the testator’s mind. Put more simply, for a will to be valid, the testator must have enough mental presence to know of his or her family, know what property he or she owns and make a plan to give it away.
If the contesting party shows that there was no testamentary capacity, the will is invalidated and the testator’s estate reverts back to the prior will, if any, or to intestate succession (determination of heirship) if there is no valid prior will.
Undue influence is more complicated than lack of testamentary capacity, but generally, the challenger must prove that some sort of improper or wrongful persuasion overcame the testator to the point that his or her free agency was overpowered and the influencer substituted his or her wishes for those of the testator.
Undue influence is typically pled alongside lack of testamentary capacity because a weak mind is more prone to the undue influence of others.
Generally, the action must be directed toward procuring the will and must go beyond mere advice and persuasion.
Of key concern in these cases is whether the person influencing the testator was a fiduciary (a person with a duty to put the welfare of the testator above his or her own, such as an attorney-client relationship). If the person accused of undue influence is a fiduciary, there is a rebuttable presumption of undue influence. There are many appellate decisions on undue influence, but they are beyond the scope of this article. Suffice it to say that if a caregiver, attorney, agent under power of attorney, or other person with significant responsibility toward the testator procures a will for his or her own benefit, undue influence should be investigated.
Notice to Creditors
One of the primary responsibilities of an estate representative is to pay the estate’s proper debts and challenge improper claims. Though the representative may be aware of many claims, such as routine credit card and utility bills, there are often both unknown creditors and known creditors to whom the outstanding balance is uncertain. To settle the estate’s outstanding debts, the representative first provides a notice to creditors.
An estate’s creditors have strict time limits to assert their claims, and the period for asserting claims starts with the issuance of proper notice. In many simple estates, the creditor claim period is the main obstacle to making distributions to heirs and legatees, so it is important to start the claims period as soon as possible to expedite distribution.
Notice to Known Creditors
If a decedent’s creditor is known, or if the creditor’s name and address are reasonably ascertainable, the representative has a duty to mail or deliver a notice to the creditor unless that creditor’s claim has been allowed or disallowed (see “Allowance and Disallowance of Claims” discussion below). The notice must contain the following:
1. A statement of the decedent’s death;
2. The name and address of both the representative and his or her attorney of record;
3. A statement saying that claims may be filed on or before the date stated in the notice, which must be at least six months from the date of the notice’s first publication or three months from the mailing or delivery date, whichever is later; and
4. A statement saying that any claim not filed on or before that date is barred (“lost”).
Notice by Publication to All Creditors
In addition to mailing or delivering a notice to each individual known creditor, the representative must also publish notice to properly notify all unknown creditors.
The publication of notice must be made once a week for three consecutive weeks and must appear in a newspaper published in the county where the estate is being administered. The requirements for the contents of the notice are the same as for the individual notices to known creditors.
Maintain an Accurate Time Log
In most cases, the representative is entitled to a reasonable fee for the time he or she spends administering the estate. It is not necessary that the representative charge a fee, but it is often a good idea, even if the representative is the primary or only beneficiary of the estate. It is wise to accept a fee because administration costs are included in the highest priority of claims. If the estate lacks sufficient assets to distribute anything after claims are paid, the representative will still be paid the administration fee in preference to other types of creditors.
If the representative accepts a fee, he or she must keep an accurate log of each task completed and the time spent on that task because Illinois law provides for an hourly fee, not a percentage of estate fee. Ideally, this log will be written as each task is completed. It is best to provide as many details as possible in the log since interested parties may challenge the fee if it impacts their distribution.
There is little guidance as to what constitutes a “reasonable fee,” though it is clear a representative can charge a higher hourly rate for more complex tasks. An hourly rate of $50.00 to $75.00 has been approved by Illinois courts.
Obtain a Tax ID and Checking Account
Once letters of office are issued, the representative will obtain a tax identification number for the estate (this number functions much like a social security number). This will allow the representative to pay taxes on behalf of the estate.
The representative must also obtain a checking account in the name of the estate. This allows the representative to properly administer the estate separate from the representative’s own assets. It also makes record keeping much easier.
Maintain Accurate Records
It is important for the representative to maintain detailed records with respect to estate assets. The estate must be run like a business; therefore, the representative must keep proof of all transactions and time spent on tasks. This is different from the way that most people run their personal affairs.
The representative should keep an accurate check register and balance it with bank statements. The representative should also keep receipts and bank statements as well as confirmation of cancelled services.
Notify Social Security and Forward Mail
The representative must notify the Social Security Administration of the decedent’s death and return any payments made for the month of death. If a person is entitled to survivorship benefits, the representative should make a claim on his or her behalf.
The representative should forward the decedent’s mail to his or her own address to aid in managing the estate. This can be done online at https://www.usps.com/manage/forward.htm.
Cancel Unnecessary Subscriptions
Over the years, many people accumulate numerous subscriptions and services that charge monthly or yearly and automatically renew. The subscriptions should be cancelled and refunds should be requested when applicable. Most subscriptions can be discovered by examining the decedent’s credit card and bank statements.
Close Safety Deposit Boxes
If the representative locates safety deposit boxes, he or she should retrieve the contents and close the account(s). If a safety deposit box is necessary during the administration process, the representative should open one in the name of the estate. If it is believed that there may be a will or burial documents in the safety deposit box, a close family member may inspect the box for these documents under the Illinois Safety Deposit Box Opening Act before a representative is appointed.
Once letters of office are issued to the representative, the representative has a duty to take inventory of all the estate’s personal property and real estate. The representative must also determine whether the estate has any cause of action under which it has the right to sue.
Unlike in supervised administration, an independent administrator generally does not have to file the inventory with the court. The representative does, however, have a duty to interested persons, including the person or company that issued the bond.
The representative must provide a copy of the inventory to the surety on the bond within 90 days after letters of office have been issued, listing all real and personal property of which the representative has knowledge. The representative must also provide the surety with a supplemental inventory whenever new property is discovered. The inventory and all supplements must be sent via certified mail.
The representative must also provide an inventory to any interested person upon request.
The representative may also employ appraisers if he or she believes an appraisal of property is necessary to administer the estate.
The Powers of the Independent Representative
The independent representative has broad powers but must act in the estate’s best interest. Illinois law sets forth the powers of the independent representative, which may be increased or limited by the language of the will in cases where one exists.
How the independent representative exercises these powers will vary greatly from estate to estate. Some estates require significant management and others need little more than liquidation of a few assets.
The following are the powers granted by Illinois law:
The power to lease, sell, mortgage, or pledge the decedent’s personal property and distribute any personal property that is not necessary to sell.
The power to borrow money on behalf of the estate, with or without security.
The power to mortgage or pledge agricultural commodities.
The power to continue an unincorporated business that was owned by the decedent.
The power to settle, compound, or compromise any of the decedent’s claims or interests and to settle, compound, or compromise and pay all claims against the estate.
The power to perform any of the decedent’s contracts.
The power to hire agents, accountants, investment counsel, and legal counsel; to delegate acts of administration to them; and pay them reasonable compensation.
The power to hold stocks, bonds, and other personal property in the name of a nominee.
The power to take possession of, minister, and grant possession of the decedent’s real estate, including the power to pay real estate taxes; sell, lease, or mortgage real estate; and confirm the title of any heir or legatee to real estate. However, the power to lease, sell, or mortgage real estate specifically left to a legatee requires the legatee’s consent.
The power to retain the estate’s property and invest money, with certain limitations.
Marshalling of Assets
The representative has a duty to take control of the estate’s assets. Ideally, people in possession of estate assets will turn them over voluntarily when presented with certified copies of the decedent’s death certificate and letters of office. All collected cash assets will be placed in the estate’s account. The representative may be required to invest the estate’s assets if appropriate.
In some cases, the representative will not know which assets are held by a third party; in other cases, a third party may refuse to turn over estate assets. In these cases, the representative will use a citation to discover assets or a citation to recover assets, whichever is applicable.
A citation to discover assets is a tool used to discover information related to the location of the estate’s assets. It is typically brought by the representative against people believed to be in possession of assets or information related to assets of the estate.
A citation to recover assets is used to compel transfer of estate assets to the representative or resolve disputes over the title to land or personal property. A Citation to Recover proceeding is subject to the rules of civil procedure, and either party may request a jury trial.
Cause of Action as an Asset
In some cases, the estate will possess a legal cause of action as a substantial asset of the estate. These lawsuits are most commonly Survival Act claims related to the death of the decedent. Though claims by the family for harm suffered due to the death itself (such as loss of support and companionship) under the Wrongful Death Act are not part of the probate estate, accompanying claims for the pain and suffering of the decedent him or herself are assets of the estate under the Survival Act. These claims commonly arise when the decedent suffers an unnatural death, such as being the victim of a car accident.
Treatment of legal claims varies depending on whether the decedent’s only asset is a legal claim at the time of death or if the estate is otherwise subject to probate.
If the estate is otherwise subject to probate, the representative opens an estate as usual and either pursues the claim on behalf of the estate or substitutes for the decedent as the plaintiff in ongoing litigation. When pursuing the claim, the representative must determine the financial viability of doing so. Specialized counsel is typically retained to pursue complex claims, which can be expensive. If the cost of an attorney is more than the value of the claim, or if the chance of winning the claim is in doubt, it might make sense to abandon the cause of action rather than risk estate assets by pursuing a lawsuit that is of questionable benefit to the estate.
In some instances, a cause of action exists before death but the decedent dies before litigation has been initiated or completed. If no Petition for Letters of Office has been filed, the court is allowed to appoint a special administrator to prosecute the claim. The use of a special administrator is only allowed if no Petition for Letters of Office has been issued. If a probate estate is later opened by a representative other than the special representative, the court may substitute the representative of the estate for the special representative. See 735 ILCS 5/13-209.
Protection of Assets
The representative of the estate has a duty to take possession of the estate’s assets and protect them during administration. Courts sometimes call this “the duty not to commit waste.” Protecting assets can take many different forms depending on the type of assets in the estate.
The decedent’s home is the most common asset that needs protection. The representative should maintain proper insurance on the home and, in cold climates, make sure the home is heated during the winter months so pipes do not burst. Other repairs may be necessary if they make financial sense, such as fixing leaks and exterminating pests. The property should also be inspected to make sure it is secure as unoccupied real estate is an easy target for thieves and even squatters. The representative also has a duty to pay the property taxes assessed against the real estate as well as the mortgage and condominium/association dues.
Real estate other than the decedent’s residence has all the special considerations of a home with additional layers of complexity if there are tenants. When an apartment or commercial property was personally managed by the decedent, his or her death can be disruptive and confusing to the tenants. The death does not extinguish the landlord’s or tenant’s duties under the lease or under the law. The representative must quickly introduce himself or herself to the tenants and present the letters of office to assure the tenants that rent is to be paid to the estate. It is common for tenants, in the confusion of the landlord’s death, to stop paying rent or even move out of the property. This is especially the case when the property falls into disrepair or utilities are not maintained. If the representative is not diligent in the winter months, utilities may even be cancelled by a tenant, which can result in devastating broken pipes and flooding. The representative must also be careful to review state and local laws regulating the landlord and tenant relationship, especially in highly regulated Chicago. If the decedent owned many units, the representative may find it prudent to hire a professional property manager.
Farms also give rise to many unique challenges. Livestock must be fed and cared for, and crops must be watered and harvested. In addition, farms often maintain many insurance policies to protect assets and crops. If the representative lacks the knowledge needed to run a farm, it may be necessary to hire someone to do so.
Businesses owned by the decedent, especially those personally managed by the decedent, create special challenges. Depending on the nature of the business, machinery must be maintained, employees managed and paid, insurance maintained, taxes and other government fees paid, licenses maintained, and contracts reviewed and addressed. The difficulty of managing a decedent’s business will often depend on whether there was a succession plan and, if not, whether an heir or legatee intends to take over the business. If there is no plan and no heir or legatee wants to operate it, the business may need to be sold as an operating business or liquidated if it isn’t profitable or no market exists for it. Businesses may also need to be sold or liquidated if doing so is the only way to pay claimants or distribute the estate to heirs or legatees in the proper proportions.
The representative must take careful action to preserve and protect estates with extensive investments, especially those that are volatile (options, derivatives, commodities). Not only are these assets subject to value fluctuations, the representative must consider the tax consequences of liquidation or in-kind transfer (transferring the actual asset rather than liquidating it) when managing the estate.
The representative should be sure that automobiles are insured against loss and are not used in order to avoid liability for personal injury caused in an accident. Automobiles should be sold unless necessary for in-kind distributions.
Collections may require specialized insurance and care. When the representative takes possession of a collection that has substantial value, he or she may need to consult an expert regarding the collection’s care and maintenance. An appraisal may also be necessary in addition to using a specialized broker if the representative will be liquidating the collection.
General personal property should be taken into the representative’s possession, insured against loss, and promptly liquidated if not necessary for in-kind distributions.
Payment of Claims
Priority of Creditors
Some estates will not have enough assets to pay all creditors. When this is the case, it is important to understand the different levels of creditor priority. The higher class of creditors must be paid before anyone in a lesser class is entitled to payment. If there are insufficient funds to pay all creditors within a single class, each creditor is paid proportionally.
The classes, from highest to lowest, are as follows:
1. Funeral and burial expenses, administration expenses, and statutory custodial claims.
2. The surviving spouse’s and/or child’s award.
3. Debts due to the United States.
4. Money due to employees for services during the four months prior to death (but not more than $800.00 per claimant) and expenses attending the last illness.
5. Money or property held in trust by the decedent which cannot be identified or traced.
6. Debts due to state and local municipalities located within Illinois.
7. All other claims.
Allowance and Disallowance of Claims
The representative may allow a valid claim by either paying it or consenting to it in writing. However, the representative my not allow a claim that has been barred due to the lapse of time or formally disallowed by the court. If a claim has been filed in court, the representative must file a notice of allowance with the court.
The representative must respond to requests made by interested persons regarding the propriety of claims.
If the representative chooses to disallow a claim that the creditor has not filed in court, the representative may do so by mailing or delivering a notice of disallowance. The notice of disallowance must be mailed or delivered to the claimant and the claimant’s attorney (if known). The notice must also state that if the claim is not filed in court by the date set forth in the notice, which must be at least two months from the date of the notice, the claim will be barred (lost forever).
Claims Bar Date
Probate has strict rules regarding notice of claims, filing of claims, and barring of claims. The representative must be cognizant of these dates so he or she does not accidentally pay barred claims and also so that he or she can initiate the start of the claims period as quickly as possible.
Claims are barred as follows:
Claims not filed with representative or court: Barred after the date set forth in the notice mailed to the known creditor or published to unknown creditors, which is typically six months after date of mailing or publication.
Claims disallowed by representative: Barred if not filed in court by the date set forth in the notice of disallowance, typically two months after the date when the notice of disallowance was mailed.
Claims without proper notice: If the representative fails to properly publish notice to unknown creditors or fails to provide proper notice to known creditors, those claims are barred two years after the decedent’s death.
Claims covered by liability insurance: The Probate Act does not bar claims that are covered by liability insurance, to the extent that there is insurance coverage. Those claims are barred when the statute of limitations for that cause of action expires (for example, two years for most personal injury claims).
Claims Filed with the Court
If a claimant files a claim with the court, the claimant must mail or deliver a copy of the claim to the representative and to the representative’s attorney of record, unless the representative or the representative’s attorney has either allowed the claim or waived mailing or delivery. The claim must be mailed or delivered within 10 days of the filing of the claim.
Once the claim has been mailed or delivered, the representative of any interested party that may be impacted if the claim is allowed may file pleadings, including a counterclaim against the claimant, within 30 days.
When the claim is called before the court, the court may allow the claim, dismiss it, set it for trial, or delay addressing it until later date. If the representative consents to the claim, or if no pleading has been filed in response to the claim, the court may treat the claim as proven or may require proof by the claimant.
In the case of a successful counterclaim that exceeds the value of the claim, the court may enter judgment for the estate, accounting for setoffs and credits where appropriate.
Preparation of Taxes
Taxes are a complex part of the Illinois probate process. Though the estate tax receives the most attention, income taxation is relevant as well. Income taxes must be paid both for the final year (or partial year) of the decedent’s life and for income the estate receives after death. Though some probate lawyers have the tax experience to also serve as tax counsel, it is often necessary for the representative to hire a tax professional to advise on income taxation and the tax consequences of decisions regarding the estate.
An income tax return must be filed for income received prior to the decedent’s death. If the decedent had a living spouse at the time of death, this return may be filed either jointly or individually. If the decedent died without a spouse, the return will be filed individually.
The estate is treated as a separate taxpayer and files under the tax identification number that the representative obtained. There is a modest exemption for estate income, but income taxes must be filed by the representative if there is income greater than the exemption.
The estate tax, or as some politicians like to call it, “death tax,” is only applicable to the estates of the very wealthy. Some attorneys focus their practice on this large and complex area, and explaining the estate tax and tax planning is well beyond the scope of this article. Generally, as of 2017, estates in excess of $4,000,000.00 might be subject to Illinois and/or federal estate taxes. This number is substantially higher if the decedent was married at the time of death and planned properly because there are certain exemptions for transfers to spouses. The estate tax threshold may be lower if the decedent made large gifts during his or her lifetime because gifts can erode the threshold. (This prevents people from giving away all of their property during their lifetime to avoid the estate tax.)
If the decedent’s estate has a value in excess of $4,000,000.00, the representative should seek an attorney with experience handling taxable estates.
Distribution of Property
Though an independent representative has the power to distribute the estate’s property before the claims period elapses, it is wise to wait until all claims have been submitted and the bar date has passed. If the representative wishes to make an earlier distribution, he or she must require a bond from the property recipient. Since the expiration of the claims deadline is the main impediment to distribution of a simple estate, it is important to initiate the claims period as quickly as possible.
Since claims are paid by class, it is possible to pay certain claims more quickly than others.
Claims of the first class (funeral and burial expenses, costs of administration, and statutory custodial claims) are paid before all others. Therefore, unless it appears the estate does not even have funds to fully pay this class of claims, they may be paid quickly.
The second class of claims (spouse and child’s award) is also important, especially when a family loses its breadwinner and he or she did not leave non-probate assets to support the family. If the estate is clearly sufficient to pay all creditors and the first class of claims, a quick distribution to the second class may be possible.
In cases of independent administration, the representative may pay the spouse and child awards without a court order. There are some limitations on the independent administrator, but understanding his or her powers requires understanding the rules of supervised administration.
In supervised administration, the spouse and child awards are amounts that the court determines are reasonable to support the spouse and minor children for the nine months following the decedent’s death in a manner that is suitable to the condition in life and condition of the estate (the standard to which they are accustomed, taking into account the limitations of the estate). The spouse and child award is no less than $20,000.00 for the spouse plus $10,000.00 for each minor or dependent child residing with the spouse. The award is to be distributed as the court directs in three installments or less.
If a minor or adult dependent child does not reside with the decedent’s spouse, an award of at least $10,000.00 is payable for that child’s support to a person directed by the court.
In cases of independent administration, the judge does not make a determination of the appropriate award, so additional rules are necessary. The independent representative may always award the minimum amounts, $20,000.00 to the spouse and $10,000.00 for each minor or adult dependent child, so long as the representative is confident the first class of claims will be sufficiently paid. However, if the independent representative determines more than the minimum should be awarded, the aggregate sum of all awards may not exceed 5% of the gross value of the estate. If the independent representative believes a higher percentage award is proper, he or she must obtain permission from the court.
The independent representative must notify all who will receive the spouse and child award, except in cases where a recipient has waived notice.
In cases where there is no will, distribution of property that remains after all classes of claims are paid is not complicated. Furthermore, the manner in which the heirs receive their property is highly discretionary. The representative must only ensure that each heir receives the percentage value to which he or she is entitled. Whether this is achieved by liquidating the estate to cash or distributing actual items (called “in-kind” distributions) is at the discretion of the administrator.
In contrast, distributing property in estates governed by a will can be much more complicated. Though simple wills often leave a percentage of the estate to one or more legatees in a manner similar to the default rules under Illinois law, some people create very complicated wills, making gifts of specific items to specific people or specific amounts of cash to certain individuals. Assuming the estate is completely solvent, distributing individual items in kind is not difficult. However, many wills were written long before death and not updated. In those cases, it is common for specific items to have been sold, discarded, or lost. Moreover, some individuals fall on hard times after writing a will and claims against the estate may exceed the cash on hand, necessitating liquidation of some assets that may have been specifically left to a person.
Property left by a will is called a “legacy.” There are three different kinds of legacies that are important to understand: specific, pecuniary, and residuary.
Specific legacies: A specific legacy is a gift of a certain item, such as “I leave my brown rocking chair to Sam.”
General legacies: A general legacy is a gift payable out of the general assets of the estate, commonly money, such as “I leave $100.00 to Sam.”
Residuary legacies: A residuary legacy is a gift of the property remaining after all other legacies are satisfied, such as “I leave the residuary of my estate to Sam.” Though residuary legacies are the leftover property and the legatee receives nothing if there is nothing left, these legacies are often the most important for two reasons. First, residuary legatees are the most interested in preserving the estate because any waste or expenses directly impact their inheritance. Second, residuary legatees often receive the largest share of the estate. This is because the testator commonly drafts a will by giving smaller gifts to specific individuals and then stating that everything else goes to a close family member.
Now, with a basic understanding of the more common types of gifts, it becomes easier to understand how gifts are distributed in estates under a will. Unless the will states otherwise, the following explains the payment order of the different types of gifts.
Specific legacies have the highest payment priority so long as the property being gifted is still in the estate at the time of death. If the property is still in the estate, it is the last to be liquidated to pay creditors and is distributed in kind. If the gift is no longer in the estate (if it has been sold or disposed of before death), that legatee will receive nothing. If the specific legacy is liquidated, the legatee entitled to a specific legacy shall be paid proportionally before general and residuary legatees. For example, if Sam is gifted a brown rocking chair and it is still in the estate at the time of death, Sam will receive the chair. If the chair is not in the estate at the time of death, Sam will receive nothing. If the rocking chair is sold by the representative, Sam will receive its value in priority to general and residuary legatees.
General legacies are second in priority since they are paid from the estate’s general assets. The estate’s general assets are used to pay claims against the estate; once this has been done, the general legacies are paid if there are sufficient assets remaining to pay all specific legacies. If a specific legacy was liquidated, those legatees are paid from the estate’s general assets before paying the general legatee. If there are not sufficient assets to pay all general legacies, the legatees will have their legacy paid pro rata.
Residuary legacies are last in priority and legatees receive what is left over after claims, specific legacies, and general legacies are paid.
Gathering Receipts from Heirs and Legatees
One of the more idiosyncratic aspects of the Illinois probate process is gathering receipts when property is distributed to heirs and legatees. Ideally, heirs or legatees physically present themselves to the representative or the representative’s attorney, the gift is provided, and the heir or legatee signs a receipt indicating that the gift was received. In reality, gifts, especially gifts of money, are typically made in the form of checks mailed to the beneficiary. Because the court and the law strongly insist on signed receipts, the representative must typically insist that the beneficiary sign a receipt before the beneficiary receives the gift. This is frequently off-putting to people who are cautious about signing a receipt for something they haven’t actually received.
There are several solutions to this problem, if necessary. First, the beneficiary can be given the option of receiving the gift in person and signing a receipt at that time. Second, the attorney for the estate can insist that the representative issue the checks and leave them with the attorney’s office before the receipt is demanded—this will often provide a level of comfort for the beneficiary knowing that he or she can pick up the check from a licensed attorney. If no receipt can be obtained from the beneficiary, or if the beneficiary refuses to provide one, the court can order the representative to deposit the money with the county treasurer, who will provide a receipt to the representative. The beneficiary can then claim his or her money from the treasurer in accordance with the treasurer’s rules.
Closing the Estate
Closing an estate in independent administration is one of the few items that requires the representative to appear in court.
The independent representative must mail or deliver an accounting to all interested persons, but the accounting does not need to be presented in court unless an interested person requests a court accounting.
The independent representative must file a verified report with the court stating the following:
1. In estates with a will, that proper notice was given when the will was admitted or denied admission to probate and when a representative was appointed.
2. In estates with no will, that proper notice was given when a Petition for Letters of Office was filed and when an order issuing letters of office was entered.
3. That the notice to creditors was published, and that reasonable care was used to determine the decedent’s creditors, and that all known creditors have been given proper notice.
4. That copies of the inventory and accounting have been mailed or delivered to interested persons as required by law.
5. That every claim filed has either been allowed, disallowed, compromised, dismissed or barred, and that all allowed claims have been paid in full unless the estate has insufficient assets. If the estate has insufficient assets, that claims have been paid according to their priority levels.
6. That all death taxes have been paid or otherwise provided for, or that the estate is not subject to death taxes.
7. That all administrative expenses and other liabilities have been paid and that administration has been completed, or to the extent not completed, has been provided for as specified in the report.
8. That the estate’s remaining assets have been distributed to the persons entitled thereto.
9. That the fees paid to the independent representative and his attorney have been approved by all interested persons, except as indicated above.
10. The name and post office address, if known, of each person entitled to notice of the filing of the report.
The representative must give notice of filing the report to all interested persons except:
1. Creditors whose written approvals of the report are filed with the report or whose claims have been paid according to statutory priority or compromise.
2. Heirs and legatees whose signed receipts for payment or distribution in full are filed with the report. However, if an interested person’s share of the estate was affected by the amount of fees paid or payable to the representative or attorney, that person’s receipt must state that the fees are approved. If an interested person’s share or distribution was affected by the size of the estate, that person’s receipt shall state that an inventory has been received and an accounting has been approved.
3. When a trustee is an interested person, beneficiaries of the trust by reason of the beneficiaries’ interest in the trust.
If there is no interested person entitled to notice of the report, the court will enter an order discharging the representative and declaring the estate closed.
If an interested person is entitled to notice of the report and has not waived notice, the representative must give notice of filing the report within 14 days. The notice must be mailed and contain a copy of the report showing the date of filing. The notice must also state that if no objection is filed within 42 days after the report is filed, the representative will be discharged and the estate closed.
If the name and address of a person entitled to notice does not appear on the report (or if the estate was opened on the presumption of death), the representative must publish notice. The publication of the notice must occur within 14 days of filing the report and must be published once a week for three successive weeks. The publication must state that a final report was filed, the date the final report was filed, and that the independent representative will be discharged and the estate closed if no objection is filed within 42 days of filing. The publication must be made in a newspaper published in the county where the letters of office were issued. The representative must file proof of mailing and publication with the clerk of court.
So long as no objection is received, the independent representative may apply for discharge at any time after the 42 days have elapsed. The court will then enter an order discharging the representative and declaring the estate closed. If there is an objection pending, the court will order notice to interested persons and may order the independent representative to present a verified account to the court.
The order discharging the independent representative and closing the estate is binding on each person whose receipt or approval was filed with the report and on each person to whom proper notice of the filing of the report was given. The only time such people are not bound is if there was fraud, accident, or mistake.
The order of discharge and closing the estate is the end of the probate process in almost all estates. There are times when the estate must be reopened, but those situations are beyond the scope of this article.
This article has covered the basic steps of the probate process in Illinois. Each step is subject to further complication, detail, conflict and even litigation that cannot be covered in this (or any) webpage. Though it is good to have a basic grasp of the process before seeking a lawyer, one should never attempt to manage an estate without representation. To request a free initial phone consultation with a lawyer, you can click this link and schedule a time for a call. If you have questions about the cost of probate in Illinois, read my article at this link.