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Illinois Probate Claims Explained

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Article written by Attorney Kevin O'Flaherty
Updated on
November 1, 2019

The purpose of this article is to explain the Illinois probate claims process.  We will discuss the deadline to file probate claims, how to file a probate claim, the process for litigating disputed claims, and priority of Illinois probate claims.  For information about the probate process generally, check out our previous article: The Illinois Probate Process Explained. 

In a probate case, the executor or administrator of the estate ( the “representative”) is responsible for collecting the assets and income of the deceased individual (the “decedent”) and using them to pay any liabilities of the estate prior to paying heirs and legatees (beneficiaries of the decedent’s estate plan).  Anyone who has a cause of action against the decedent may file a claim against the estate.  This can include claims for breach of contract, torts, collection of a debt, and various other types of liabilities.  

When is the Deadline to File a Probate Claim in Illinois?

The statute of limitations for probate claims in Illinois provides that creditors have two years from the date of the decedent’s death to file a claim against the estate.  However, this period can be shortened by the representative providing notice to known and unknown creditors.  

The representative will typically mail notice of the probate estate to all known creditors.  Any creditor receiving this notice will have 3 months to file a claim.  If the creditor does not file a claim within this period, the claim will be barred.  

‍The representative will also typically publish notice to unknown creditors in a newspaper appropriate to the county in which the estate is being administered.  This notice will run in the newspaper for three consecutive weeks.  Any creditor not receiving a personal notice will have 6 months from the date of publication of this notice to file claims against the estate. 

If there are problems or errors with the notices provided by the representative, the claims deadline will default to the two-year statute of limitations. 

How  to File a Probate Claim in Illinois

Probate claimants are not required to follow formal rules of pleading as in typical civil litigation.  The only requirements for probate claims is that they contain sufficient information to apprise the representative of the nature, type and amount of the claim.  If there is documentary evidence, such as an invoice, associated with the claim, the document should be attached to the claim.  Many Illinois counties have claim forms available online.   

A claimant against a probate estate has the option to file a claim with the representative, with the court, or with both.  Because the probate court will charge a filing fee, many claimants choose to file the claim first with the representative and only later file the claim with the court if the representative rejects (“disallows”) the claim. 

Whether the claim is filed with the court or mailed to the representative, the representative may allow or disallow the claim.  When an representative allows the claim, he or she agrees that it is legitimate and agrees to pay it from estate funds to the extent that funds are available.  If the representative disallows the claim, the representative is informing the claimant that he or she intends to dispute the claim in court. 

If the representative intends to disallow a claim, he or she should do so within 30 days of receiving the claim.  If the representative is disallowing a claim that has been filed with the court, the representative may either file the court’s disallowance form or verbally disallow the claim at an initial hearing on the claim. 

In order to disallow a claim that has only been filed with the representative, the representative should mail notice to the claimant of the representative’s intent to disallow the claim. The claimant will then have two months from the date of the notice to file the claim with the probate court.  If the claimant fails to file the claim with the court within this timeframe, the claim will be barred. 

What is the Process for Litigating Disputed Claims in Illinois Probate Cases?

Within 30 days after a claim is filed with the probate court an initial hearing will be scheduled.  At this hearing, the representative may allow the claim, disallow the claim and schedule a trial date, or continue the hearing to another date for the purpose of attempting to settle the claim.  

If a claim is disallowed, the claim will be litigated under the normal rules of civil procedure, including written and oral discovery, pre-trial motion practice, and a presentation of evidence at trial. 

One key rule of evidence that often applies uniquely to probate claim trials is the Dead-Man’s Act (755 ILCS 5/8-201), which prevents interested parties from testifying to their own benefit about discussions or events that took place with the decedent.  The purpose of the act is to reduce the possibility for false probate claims.  It is important to note that the protections of the Dead-Man’s Act can be waived by other parties’ actions in court and that the act also contains some exceptions. 

Priority of Illinois Probate Claims Explained

Once claims have been allowed by the representative or proven at trial, they will be classified based on priority.  There are seven classes of claims.  If the estate has enough money to pay all of the claims against it, the classes are irrelevant because all claims will be paid in full.  If the state is insolvent (i.e. it does not have enough money to pay all claims), the classes of claims will be paid in order of priority. 

Each class of claims must be paid in full before any money is allocated to the next class of claims.  If there is some money to allocate to a particular class, but not enough to pay all of the claims in the class, the money attributed to the class will be spread among all of the claims in the class pro rata.  This means that each claim in the class will each receive the same percentage of payment from the estate.  The bottom line is that, if the estate is insolvent, a claim has a higher chance of being paid in full the higher the priority of its class.  

‍The seven classes of claims are as follows:

  1. Funeral and burial expenses, expenses associated with the administration of the estate, and statutory custodial claims (claims made pursuant to statute by a live-in caregiver for the decedent.)
  2. Surviving spouse’s or child’s award: These are amounts awarded by the court for the purpose of supporting the spouse and children for a period of 9 months after the decedent’s death.  The minimum awards are $20,000.00 for spouses and $10,000.00 for children.  
  3. Money owed to the U.S. government.
  4. Money owed to the decedent’s employees for services rendered within 4 months prior to death (limited to $800.00 per claimant) and expenses associated with the decedent’s final illness.
  5. Property held in trust by the decedent that has been commingled with the decedent’s personal assets or that has been wrongly converted to the decedent’s personal use.  
  6. Money owed to state and municipal governments.
  7. All other claims.
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Illinois Probate Claims Explained

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