In this article...

Watch Our Video
Frank Serritella

Are you wondering when is probate required in Illinois? Probate is necessary in Illinois when an individual dies with assets solely in their name exceeding $100,000 in value, or if there’s real estate that doesn’t automatically transfer ownership through co-tenancy or trusts. This article explains the key thresholds and details about the probate process in Illinois, guiding you through the situations when probate is unavoidable and offering insights on how to navigate these legal waters.

Understanding the Illinois Probate Threshold

The process of Illinois probate commences upon a person’s death with the purpose of accounting for their assets, settling debts, and distributing remaining possessions according to their will or state regulations. Not every estate requires this legal procedure. So when is it mandatory in Illinois?

The necessity for probate in Illinois primarily depends on two factors: the overall value of probate assets and how they were titled by the deceased individual. If an estate exceeds $100,000 in total worth (including any items specifically bequeathed through a will or distributed under intestacy laws), then probate proceedings are typically required. If real estate is part of those assets – unless ownership was structured via joint tenancy arrangements like tenancy by entirety or living/successor beneficiary trusts – then it must go through formal succession procedures.

What types of property are not part of a probate estate in Illinois?

Some examples of property not subject to probate include:

  • Assets in a trust
  • Assets with a designated beneficiary (retirement accounts)

These assets pass directly to the beneficiaries without being included in the probate estate.

Illinois Small Estate Affidavits Explained

If probate is not required based on the test listed above, your trustee, executor, or administrator can administer your estate outside of probate using a small estate affidavit. The small estate affidavit must be in either the form provided for in the Illinois statute (755 ILCS 5/25-1) or substantially similar to that form to be acceptable.

The affidavit will include essential information including, among other things, the following:

  • the decedent's name;
  • the date of death;
  • the decedent's last residential address;
  • an explanation of the decedent's assets and debts, if any;
  • and an explanation of how said assets are to be distributed.

A hiccup can occur with using a small estate affidavit in situations where the affiant (the person creating and using the small estate affidavit) is not acting honestly. The small estate affidavit does not need to be filed with the court or be approved by someone acting on behalf of the decedent, and, therefore, any person can create one to transfer any other person's assets. While it is unrealistic to expect this to happen often, the legislature did take precautions in antiquation of just that scenario.

The statute, found in the Illinois Probate Act of 1975, requires any entity holding assets of the decedent and is served a small estate affidavit to transfer the assets in compliance with what is purported in the affidavit. Acknowledging the potential for issues wherein any person could create a small estate affidavit as a back-door method to have another person's assets transferred, the legislature expressly protects any entity which acts in good faith with reliance on a purported small estate affidavit. In the same series of events, if the affiant is found to have acted in bad faith and made false statements or representations on the small estate affidavit, they may be liable for perjury and to civil lawsuits from those individuals negatively affected by their actions.

In our firm's experience, many individuals are unfamiliar with the probate process and, due to what they've heard from others, believe it's a very burdensome process. While it does take some time (generally about a year from opening to closing), our team of experienced attorneys can help. If you need more information about a probate matter, don't hesitate to get in touch with our office at (630) 324-6666.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


Get my FREE E-Book

Similar Articles

Learn about Law