In this article, we explain how probate is started in Illinois, including filing a will with the county clerk, filing a petition to open a probate estate, and the additional documents that must accompany the probate petition in Illinois.
If the deceased individual (“the decedent”) had a will, the executor or personal representative must file the will with the clerk of the county where the decedent most recently resided. This must be done within 30 days after the person’s death. It sometimes takes longer to locate the will, or other instances can occur causing the 30-day deadline to be missed. Filing after the deadline is common and best practice is to consult an attorney on how to file the will in this situation.
An Illinois probate estate is started by filing a petition to open a probate estate. There are a few required and important pieces of information that must be given when filing the petition in the proper county. This includes the name of the decedent, the decedent’s place of residence at the time of death, and the date and place of death. If there is a will, the petitioner must present the date of the will and verify that the petitioner believes it to be the last valid will before the person’s death. The petition must also include the approximate value of the decedent’s real estate and personal property within Illinois. The petitioner needs to provide his or her full name and mailing address, as well as the names and mailing addresses of each of the decedent’s heirs and beneficiaries. Finally, the petitioner must declare whether any heir or beneficiary is a minor or a person with a disability.
Along with the petition to open the probate estate, the person acting as representative must file a few other documents required by law to begin the probate process. The documents include Petition for Letters of Office, Oath and Bond of Representative, Affidavit of Heirship, and Order Declaring Heirship.
The Petition for Letters of Office serve as a petitioner’s formal request to the court to appoint him or her as the personal representative of the estate. There are three different types of petitions that can be filed depending on the circumstance of the decedent’s will or lack thereof. These include Petition for Letters of Administration, Petition for Probate and for Letters Testamentary, and Petition for Letters of Administration with Will Annexed.
A Petition for Letters of Administration is used when a person has died without a will, and a close family member or friend is asking the court’s permission to serve as the personal representative of the estate.
A Petition for Probate and for Letters Testamentary is used when an executor was named in a will, and that person is petitioning with the court for probate to open.
Petition for Letters of Administration with Will Annexed is used when there is a will but there is no named executor or the named executor is unable or unwilling to carry out the necessary duties. Another common instance is if the named executor happened to pass away before the decedent and the will of the decedent hadn’t been updated with a new executor. The person who is then asking to be named administrator will prepare a Petition for Letters of Administration with Will Annexed for the court.
Regardless of which of the above situations applies, the Letters of Office issued by the court if the Petition for Letters of Office is granted will give the petitioner the legal power to collect the decedent’s assets and distribute the estate.
The personal representative must sign and submit an oath of office to the court. This indicates that he or she promises to faithfully fulfill the duties of the representative of the estate in accordance with the law. Many cases require the representative to submit a bond. This acts as a type of insurance to ensure no harm is done by the representative. No bond is necessary if the decedent’s will states that the bond requirement is waived.
The Affidavit of Heirship is a detailed explanation of all the heirs of the person at the time of death. The court requires this to determine the identity of each person listed as an heir.
Once the Affidavit of Heirship has been submitted with the court and the judge finds the heirs to be legitimate, he or she will sign an Order Declaring Heirship as a formal recognition of the decedent’s heirs. An order must be submitted with the probate petition for the judge’s signature.
These documents serve as the beginning of the probate process in Illinois. Once the documents have been properly submitted, probate of the estate is declared open and the subsequent steps of the probate process can take place.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: