The Illinois probate process is a court-supervised legal procedure that is sometimes (but not always) required after someone dies. Its purpose is to make it clear who inherits the deceased person’s property and to make sure valid debts and taxes are paid. Probate is handled by the deceased person’s executor, who must:
- prove in court that a deceased person's will is valid (usually a routine matter)
- identify and inventory the deceased person's assets
- have those assets appraised
- pay debts and taxes, and
- distribute the remaining property as the will (or if there's no will, state law) directs.
Will Probate Be Necessary?
Whether or not a formal probate proceeding is required depends on what assets the deceased person owned, and how he or she held title to them. It does not depend on whether or not there is a valid will. Generally, a formal probate court proceeding is necessary in Illinois only if:
- there are assets that the deceased person owned solely (not jointly), and
- all of the probate assets, together, are worth more than $100,000.
Many assets do not need to go through probate, including:
- assets held in trust (for example, a revocable living trust designed to avoid probate)
- assets owned in joint tenancy or tenancy by the entirety
- assets subject to a beneficiary designation (for example, retirement accounts for which a beneficiary has been named, or payable-on-death bank accounts)
- real estate subject to an Illinois transfer-on-death deed
Small Estate Affidavits
When the total value of the deceased person’s estate is less than $100,000 and doesn’t contain any real estate, no formal probate court proceeding is necessary. Instead, the people who inherit the assets can use a simple affidavit (sworn statement) to claim their inheritance. For example, someone who inherits a bank account could present a small estate affidavit (and a copy of death certificate) to the bank, and the bank would release the funds.
The standard affidavit is a fill-in-the-blanks form, a few pages long, and isn’t difficult to fill out. (Some institutions, such as public pension agencies, have their own version of the form, however, so always ask.) In it, the person requesting the asset provides basic information about the deceased person and states that no probate proceeding has begun (or is planned), that funeral expenses have been paid, and so on. The affidavit also must state whether or not there is a will. If there’s a will, the inheritor presents a copy of it along with the affidavit. The statement is signed “under penalty of perjury,” which means that if you lie on it, you could be subject to prosecution for the crime of perjury (lying under oath).
Formal Probate Proceedings
In Illinois, probate cases are handled by the Circuit Court in the county in which the deceased person was living. Some larger counties have a special probate division of the circuit court.
Probate is the responsibility of the person named in the deceased person’s will as the executor of the estate. If there’s no will, someone must step up and ask the court to be appointed as “administrator” of the estate, a job that is just the same as an executor. (Executors and administrators are also sometimes referred to as “personal representatives.”)
How Probate Gets Started
The executor files the will with the local court and then, if necessary, opens a probate case by filing several documents. Usually, the executor hires an attorney to draw up and file the papers. Notice of the proceeding must be sent to the deceased person’s heirs—the people who inherit in the absence of a will—even if they aren’t named in the will. Notice is also published in a local newspaper, to alert creditors. The executor may also need to post a bond, unless the will waived that requirement. A bond is a kind of insurance policy designed to protect the estate from losses caused by the executor.
Unless there’s an obvious problem with the will (which is rare), the court will admit the document to probate and appoint the person named by the will to serve as executor. That gives the executor authority over estate assets. Most probate cases are conducted under “independent administration,” which lets executors take most actions without first getting court approval. With “supervised administration,” the court must approve most actions before the executor takes them. Supervised administration is generally desirable only if heirs are fighting in court.
Assets and Debts
During the probate, it’s the executor’s job to gather, inventory, and safeguard estate assets. If necessary, the executor may need to sell some assets.
The executor is also in charge of using estate assets to pay valid claims, such as funeral expenses. The executor must:
- publish notice of the probate case, to inform creditors, and
- directly notify known creditors.
Creditors then have six months to file claims; if they miss the deadline, they’re out of luck.
The probate estate is a taxpaying entity, separate from the deceased person. The executor needs to get a taxpayer ID number from the IRS for the estate, which is used to report income and gain (and deductions) during the administration of the estate. State and federal income tax returns (IRS Form 1041 and state form IL-1041) must be filed for the estate.
An Illinois estate tax return will be due if the estate has a value of more than $4 million. Federal estate tax may be due if the estate is worth more than $5.25 million (2013 figure; it is indexed for inflation).
Will Contests and Other Disputes
Most probate cases are just paperwork and are finished within about a year. If relatives or other inheritors fight about the will or the assets, however, probate can take much longer and be much more expensive. If a court battle does erupt, it will probably be over:
- a claim that someone unduly influenced the deceased person or that the person didn’t have the mental capacity to make a valid will
- the execution (signing and witnessing) of the will
- confusing language in the will
- creditors’ claims
- accusations of wrongdoing by the executor, or
- identity of the heirs under state law, if there’s no will.
Closing the Estate
Before the estate can be officially closed, the executor must file a final accounting that shows how estate assets were handled. It lists the assets, any income that estate assets generated, amounts paid out for debts and expenses of administration, and any distributions that have been made to beneficiaries. The accounting will also document the how the executor intends to distribute the rest of the property. At closing, the executor submits a final report for the court, and gets receipts from the beneficiaries who were given assets.