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The Illinois Probate Process Explained

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

The purpose of this article is to explain the probate process.  Probate is a court case wherein the probate court oversees the administration of an estate in order to ensure proper payment to heirs and creditors.  If probate is necessary, your attorney will follow these steps to administer the estate through the probate court.  The probate process is slightly different depending on whether the decedent had a will in place at the time of death.  If there is a will in place, the estate is called a Testate Estate.  If the decedent died without a will, the estate is called an Intestate Estate.  This article will deal with probate administration of a Testate Estate.  In a future article, I will address the differences between administering a Testate Estate and an Intestate Estate, so please stay tuned. 

In order to open a probate estate, the executor's attorney will file several documents with the probate court:

  • Petition to Admit Will to Probate and for Letters of Office - This document requests that the court open the probate estate, allow the will to control the estate, and issue letters of office - the court order giving the executor the power to administer the estate. 
  • Affidavit of Heirship - A sworn statement by the executor listing the heirs of the estate. 
  • Affidavit as to Copy of Will - A sworn statement by the executor that the will being offered to the probate court is true and accurate. 
  • Oath of Office - A written oath by the executor to uphold his or her fiduciary duty associated with being the executor of the estate. 
  • Surety Bond or Non-Surety Bond - An insurance bond posted with the court, to ensure that the estate is administered properly. 
  • Notice to Heirs and Legatees - This is a notice that must be sent to all heirs (people entitled to inherit in the absence of a will) and legatees (people named as beneficiaries of the will) informing them of the opening of the probate estate.  
  • Publication Notice - A notice to all unknown creditors of the estate that the estate has been opened, which must be published in a newspaper.  

‍Once the above documentation is filed with the court, an initial hearing date will be set.   At the hearing, the court will issue Letters of Office giving the executor the power to administer the estate, and also issue an order admitting the will to Probate.  

‍Within 14 days of the will being admitted to probate, the executor's attorney must mail to the heirs and legatees: (1) the petition for probate; (2) the order admitting the will to probate and appointing the executor; (3) a notice regarding the rights of the heirs and legatees.  

‍If the address of an heir or legatee is unknown, the executor is required to publish notice to the heirs and legatees in a local newspaper once a week for three weeks, beginning within 14 days of the entry of the order admitting the will to probate. 

‍The executor must also publish notice to any unknown creditors.  This can be combined with the notice to heirs and legatees.  After the notice to unknown creditors is published, creditors will have 6 months to file claims with the probate court.  The case cannot be closed until this 6 month period has elapsed. 

‍The next step is for the executor to prepare an inventory, which lists the decedent's assets.  If the probate case is a supervised administration, as opposed to independent administration, the inventory must be filed with the clerk of court within 60 days after issuance of letters of office.  Estates are typically independent administration (which requires less court oversight), unless an interested party requests supervised administration.  

‍In the case of an independent administration, the executor must mail the inventory to each heir, legatee, creditor, or other interested party at least 30 days prior to filing a verified report with the court, which I will describe below. The inventory must also be mailed to any surety that issued a bond to the executor within 90 days of the letters of office being issued.   

‍When the executor has performed all of his or her duties and is prepared to close the estate, his or her attorney will prepare a final accounting showing all of the assets and income that the executor collected on behalf of the estate as well as a proposed plan for distribution to creditors, heirs, and legatees.  The account must be mailed to any creditors, heirs, or legatees that have not been paid in full.  Along with the final account, the executor will mail receipts of distribution to everyone entitled to a distribution.  Anyone receiving a distribution will sign and the receipt showing that they received the distribution indicated in the final account.  In a supervised administration estate, the final account and receipts must be filed with and approved by the court.  The executor should also obtain written approval of the final account from each interested party.  

Finally, a verified final report must be filed with the court, wherein the executor asserts that all of his or her duties as executor have been completed.  If the executor is unable to obtain executed receipts of distribution from all required parties, the executor must send notice of the filing of the final report to each such party  within 14 days of filing the report. The notice will inform the interested parties that if no objection is filed within 42 days of the date that the report was filed, the estate will be closed and the executor will be discharged.  

Once the verified report has been filed and the notice period has passed, a final hearing on the closing of the estate will be held.  This final hearing date is typically scheduled at the date of the initial hearing to open the estate, and will typically be approximately one year after the initial hearing date.  If the executor has obtained and filed all of the proper reports, notices, and receipts, the court will discharge the executor and close the estate. 

Anonymous 4/8/2017 05:16:04 pm

I saw your post about probate. Very informative! In Ohio I'm going through an issue of my own. My dad at some point developed Alzheimer's but had no guardian and he had a POA who most likely took advantage of him and stole from him as was suspected about the Ford motor life insurance money. I'm the only surviving blood relative left in my family. What happened according to what was discovered was very suspicious activity that happened behind my back and I never knew until after dad passed away. It wasn't until uniCARE who happens to have a very low customer satisfaction rating contacted me out of the blue about my dad's passing and they drag me into the middle of a situation where I gave them information only to be kicked in the teeth later because come to find out they were very reluctant to tell me what really happened to the money. Come to find out, they contacted me despite not being the beneficiary and my mom who died in 06 was the beneficiary until my dad passed in 2016. Nine years my mom was still the beneficiary after she long since died and dad never updated his life insurance beneficiary until three weeks right before he died during adult failure to thrive despite having Alzheimer's a number of years which was never revealed how many years on the death certificate. No way he could my dad have been competent to make the decision to suddenly switch his life insurance beneficiary. Something fishy according to everyone around me sounded very suspicious and even my lawyer said so or he never would've taken my case. He's the one who finally took my case after several months of actively seeking a lawyer knowing something just wasn't right. I could not be in the picture and I happened to be an abuse survivor and was rescued from my parents at age 13 where I became a ward of the state. That didn't change that I'm still that man's child and someone who had money trouble possibly became my dad's POA, and the same person who got the house who I know who it is by name, most likely also got all the money from my dad's life insurance. Even the Ohio department of insurance and the Michigan department of insurance wasn't really that much help but the Ohio department of insurance really did get me some answers as to what happened and what was going on and why uniCARE was dragging their feet and wouldn't pay out. Come to find out later on they did pay out but most likely to the person who most likely took advantage of him. I found someone under the name of the person who got my dad's house on death through a POD had a past foreclosure over taxes and lost her house to the IRS. I don't think it was my dad's house because it wouldn't have transferred to her just yet but she did live in the immediate area where my dad was living according to records. Someone got the tax records wrong and put wrong information somewhere on the documents, my lawyer found it trying to open the estate and I had to sign a few new papers with the right information after he contacted the county recorder to get the right address. This was beyond my control, I didn't put the information on any of the documents. Now a property owned by the same person in question turns out to be an empty lot and I'm going to find out what happened to the house and why because I don't know that there's not suspicious activity there

Reply Kevin O'Flaherty 4/11/2017 04:11:04 pm

Thanks for your comment. Please let us know if you would like our assistance.

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