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This article discusses topics that may impact you in 2021 regarding Illinois probate litigation, specifically probate claims.

Key Takeaways

This article discusses topics that may impact you in 2021 regarding Illinois probate litigation, specifically probate claims.

Claims filing (mailing or distribution of copies)

  1. A claim against a decedent's or ward's estate, whether based on contract, tort, or statutory custodial claim, can be filed with the representative, the court, or both. When a claim is filed with the representative but not with the judge, the representative has the option but not the obligation to file the claim with the court.  

  1. Within 10 days of filing a claim with the court, the claimant shall (1) cause a copy of the claim to be mailed or sent to each representative to whom letters of office have been issued and not revoked, including the guardian of the person of a ward, and to the representative's attorney of record, unless the representative or the attorney has in writing either consented to allocating the claim or waived mailing or delivery of a copy, and (2) shall file proof of the same with the Court as required. The validity of the claim filing is not affected by failure to mail or send copies of the claim or to file proof thereof.

Statutory custodial claim

Any spouse, parent, brother, sister, or child of a person with a disability who devotes himself or herself to the treatment of the person with a disability by living with and directly caring for the person with a disability for at least three years is entitled to a claim against the estate upon the person's death. The claimant's missed work opportunities, lost lifestyle opportunities, and mental distress as a result of personally caring for the individual with a disability must all be taken into account. A court may reduce a sum to the degree that the living arrangements were intended to and did in fact provide a physical or financial benefit to the complainant, notwithstanding the statutory claim amounts specified in this Section. The following are some of the factors a court may consider when deciding whether or not to reduce a statutory custodial claim amount: I the claimant's free or low-cost housing; (ii) the claimant's need to work full-time; (iii) any financial benefit provided to the claimant; (iv) the claimant's personal care received from the decedent or other; and (v) the proximity of the care provided by the claimant to the decedent to the time of the decedent's death.  The argument must be made in addition to any other claim, including, but not limited to, a valid claim for nursing and other types of treatment. The claim shall be dependent on the existence and degree of the person's impairment and shall be in the following amounts, at a minimum but subject to the extent of the assets available:  

1. $180,000 for 100% disability  

2. $135,000 for 75% disability  

3. $90,000 for 50% disability  

4. $45,000 for 25% disability

Any petition must be submitted in writing and provide enough detail to alert the representative to the existence of the claim or any relief requested.

Publication of notice

  1. It is the representative's responsibility to publish a notice stating the decedent's death, the name and address of the representative, and to mail or deliver to each creditor of the decedent whose name and post office address are known to or reasonably ascertainable by the representative and whose claim has not been allowed or disallowed as provided in Section 18-11, a notice stating the decedent's death, the name and address of the representative, and whose claim has not been allowed or disallowed.

  1. The published notice required by subsection (a) of this Section must be published in the county where the estate is being managed and may be combined with any notice required by Section 6-10 or subsection (b) of Section 9-5. The delegate must file a copy of the evidence of publication with the court clerk.

Claims not due

A claim against a decedent's estate that is not due can be filed, accepted, and paid out of the estate as other claims, but interest included as part of the principal obligation, measured from the time of the claim's allowance to the time when it would have been due, must be deducted.


  1. Within 30 days after mailing or delivery of the copy of the claim, the representative or any other individual whose rights may be impacted by the allowance of a claim or counterclaim may file pleadings with the clerk of the court. A claim or counterclaim can be filed in the estate's favor and against any designated claimant.  

  1. The claimant, the representative, or any other interested party can be ordered by the court to file such pleadings.

Trial by Jury

Any interested party can request a jury trial if the following conditions are met; otherwise, he/she waives the right to a jury trial:  

  1. When making a claim or counterclaim, the claimant or counterclaimant must have a jury demand.  

  1. A person challenging a claim or counterclaim must file a jury demand no later than the time he or she files his or her response or other pleading.  

  1. If a claimant or counterclaimant files a jury demand and then waives a jury trial, the individual challenging the claim or counterclaim is entitled to a jury trial upon timely demand after being informed of the waiver. The court may allow a jury demand to be filed after the time limit has passed if good cause is shown.

Hearing procedure for claims

  1. A claim may be allowed, set for trial, continued, or dismissed when it is called. A claim to which the representative or his counsel has consented or to which no pleading has been filed within the period allowed by this Act may be considered proven, or the court may order the claimant to prove his claim.  

  1. If it appears at the hearing on a counterclaim brought in favor of the estate and against a claimant that he is indebted to the estate, the court may enter judgment for the sum of the indebtedness after granting him/her all applicable credits, deductions, and set-offs.

Representative's or his/her attorney's claim

If a representative or the representative's attorney has a claim against the estate, the claim must be filed, as other persons and the court may appoint a special administrator to appear and defend the estate. The special administrator may be allowed to prosecute or defend an appeal from the claim's allowance or disallowance by the court. Notice of a representative's or attorney's claim must be given to the ward and all other representatives of the ward's person or estate within 10 days of filing by mail or in person.


The clerk of the court shall obtain the filing fee from the claimant if a claim for which a filing fee is requested is filed. All other expenses of litigation, including those relating to charges and counterclaims, may be awarded at the court's discretion.

Claims against the assets of a deceased person are classified 1-7

All claims against a decedent's assets are grouped into the following categories:  

First, there are funeral and burial costs, administrative expenses, and statutory custodial claims. Funeral and burial expenses include reasonable amounts paid for a burial space, crypt or niche, a marker on the burial space, care of the burial space, crypt or niche, and interest on these amounts.  Interest on these sums will accrue beginning 60 days after the representative of the decedent's estate receives letters of office, or beginning 60 days after the amounts are due if no such letters of office are given, up to the maximum rate of 9% per annum permitted by contract or statute.  

The reward for the surviving spouse or child comes second.  

Third, any debts due to the U.S.  

4th: Reasonable and required medical, hospital, and nursing home costs for the decedent's treatment during the year immediately preceding death; and money owed employees of the decedent for services provided within 4 months prior to the decedent's death of not more than $800 for each claimant.  

5th: Money and property that the decedent received or held in trust but cannot be identified or traced.  

6th: Debts owed to the state, as well as any county, township, city, town, village, or school district within the state.  

All other claims are seventh class claims.

Representative allowance or disallowance of claims

  1. If and to the degree the claim has not been disallowed by the court and the representative finds it to be legitimate, the representative can pay or agree in writing to all or any part of any claim that is not barred under Section 18-12. The representative's payment or approval constitutes acceptance of the claim and binds the estate. The representative must immediately file notice of the allowance with the court when a claim filed with the court is approved by the representative, but failure to do so would not impact the allowance. The representative must determine the propriety of his allowance of any claim upon the request of any interested party.  

  1. The representative may disallow all or part of any claim that has not been filed with the court at any time by mailing or delivering a notice of disallowance to the claimant, as well as to the claimant's attorney if the representative knows the attorney's name and address, stating that if the claim is not filed with the court on or before the date specified in the notice, the claim will be barred. A claim disallowed by the representative under this subsection that is not filed with the court on or before the date specified in the notice is barred under Section 18-12 in the same way that a claim that is not timely filed is barred.

Limitations on payment of claims

  1. Except for expenses of administration and a surviving spouse's or child's award, any claim against a decedent's estate is barred as to the entirety of the decedent's estate if: (1) Notice is given to the claimant , and the claimant fails to file a petition with the representative or the court by the deadline specified in the notice; or (2) the claimant receives notice of disallowance and the claimant fails to file a petition with the representative or the court by the deadline specified in the notice; or (3) The claimant or the claimant's address is not known or reasonably ascertainable to the representative and the claimant does not file a claim with the court on or before the date specified in the  published notice as given in Section 18-3.  

  1. Unless barred earlier, all claims are barred 2 years after the decedent's death, regardless of whether letters of office are issued upon the decedent's estate.  

  1. To the degree that the estate is covered by liability insurance, this Section does not preclude efforts to determine the decedent's liability.  

  1. A representative who acts in good faith to determine and give notice to creditors of a decedent, is not personally liable to a creditor of a decedent, except for a claimant whose claim is known to the representative and is not paid or otherwise barred under this Section, but any claim not barred under this Section may be asserted against (1) the estate, to the extent that assets have not been distributed, and (2) a distributee of the estate (other than a creditor), but only to the extent that the distributee's share of the estate will not, in effect, be diminished below what the distributee would have received had the claim been paid by the representative.

Payment priority

With limited exceptions, the agent of a decedent's estate pays all claims entitled to be paid from the estate in the order of their classification, and when the estate is insufficient to pay the claims in any one class, those claims are paid pro rata.

Legacies, expenses, and claims chargeable to the estate.  

Except as otherwise provided by statute or by the decedent's will, all of the decedent's real and personal property, as well as the income from it, during the period of administration are chargeable with claims against the estate, expenses of administration, estate and inheritance taxes, and legacies without distinction, and may be leased, sold, mortgaged, or pledged as the court. There is no priority between real and personal property in deciding what property in the estate shall be rented, sold, mortgaged, or pledged, except as provided by statute or by the decedent's will.

Payment of claims against wards' estates

Claims against a ward's estate must be compensated by the representative if he/she has the funds to do so.

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