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What is the Statute of Limitations for Claims Against an Estate in Illinois?

Updated on
March 18, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we’ll discuss the statute of limitations for probate claims in Illinois. We’ll discuss the different claims bar dates applicable to a decedent’s estate in Illinois and what stipulations may affect the claims bar dates, if it’s possible to override the statute of limitations, and what happens if a claimant files a claim but the representative disallows the claim.

When a person dies and their estate enters into probate creditors will have the opportunity to file a claim against the estate. Anyone who has an action against the decedent may file a claim against the estate, including claims for breach of contract, torts, collection of a debt, and any other types of liabilities. Generally, the statute of limitations for probate claims in Illinois provides that a collector has up to two years following the death of the person in question to file a claim against the estate. However, the representative of the estate can shorten the two years window by following the correct steps and making their best efforts to notify the creditors. Below are the various claims bar dates depending on the relationship between the creditor, decedent, and representative.

What is an Unknown Creditor?

If the decedent didn’t keep proper records of his or her finances the representative may not know to whom the decedent owned debt or the creditors may not be reasonably ascertainable. The representative could hope that no unknown creditors come forward for the two year period, but he or she could also shorten the claim time frame to six months by publishing a claims notice on the decedent’s estate in the proper channels. The 6-month allowance would begin from the beginning of the first publication. This 6-month time period does not apply to expenses of administration and a surviving spouse’s or child’s award from the estate.

What is a Known Creditor?

When a creditor is known or reasonably ascertainable and receives an actual claims notice that creditor has 6 months from the date of the first publication of a claims notice, or 3 months from the date of delivery or mailing of the written claims notice.

Known Creditors Without an Actual Notice

If a creditor is known and/or reasonably ascertainable, but the representative elects to not send a written claims bar date notice or publish a general claims notice through the appropriate channel the creditor will not be held to the 3 or 6-month period mentioned previously. Instead, the creditor will have the general statutory limitation of 2 years to file a claim.

Can the Statute of Limitation on a Probate Claim Be Overridden?

Generally, no. The state of Illinois Probate Act sets the claim limit at two years. There are plenty of examples of the courts upholding this provision. For example, in a case where a woman’s attorney mailed a letter threatening to file a claim against the deceased husband’s earnings during their marriage within the two-year mark of his death the court ruled that the mailed letter was not sufficient as a claim. The woman later filed a claim through the proper channels, but since it was outside the two-year mark, even with a prenuptial agreement signed before the marriage, the courts barred the claim based on the 2-year statute of limitations. Another case involving modifying the decedent’s child support obligation was barred because it was filed two and a half years after the decedent’s death. The point is, even if there is already a relationship, an attempt made, or an existing legal agreement between the parties, if the claim is not filed within the appropriate time frame it will get denied. The one deviation from this statute is if the decedent’s estate has liability insurance. In this case, the two-year limit would not apply to actions to establish liability of the decedent.

What if a Claim Against an Estate is Rejected?

In the case of a claimant filing a claim with the representative and not with the court the representative can decide to disallow the claim. The representative would have to file a notice of disallowance with the court and then mail or deliver the notice to the claimant. This notice should state the date that the claimant must file the claim with the court, which cannot be less than two months from the delivery of the disallowance notice.


What is the Statute of Limitations for Claims Against an Estate in Illinois?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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