Who Decides the executor of a will?

How is an executor determined if there is no will? | Illinois Estate Administrators Explained

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Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
September 20, 2019

In this article, we will explain how the role of executor or estate administrator is determined in Illinois probate estates.  For some foundational information, check out our previous articles: What is Probate?: An Introduction to Probate in Illinois and What Are the Responsibilities of an Executor in Illinois Probate?

If the deceased person had a valid will,  the will should state the deceased individual’s choice for who will be executor of the estate. Sometimes, a will even has successor executors listed to act as administrators of probate activities if the primary executor is unwilling or unable to act as the personal representative of the estate.  Other than simply naming an executor, a person may also specify that they wish for the executor to hire an attorney to help with the collection of assets and distribution of the estate. In this case, the executor will be responsible for finding the attorney.

If a person passes away without a will, the court has to appoint an administrator to be the estate representative during the probate proceeding of the decedent’s (person who is deceased) estate. Illinois law uses a system of priority classes to designate who can nominate a representative to handle matters of the estate.

 These are the priority classes used by Illinois courts, in order:

  • The surviving spouse, or any person nominated by the surviving spouse;
  • Legatees (beneficiaries of the will), or any person nominated by them, with preference given to the children of the decedent;
  • Decedent’s children, or any person nominated by them;
  • Decedent’s grandchildren, or any person nominated by the grandchildren;
  • Decedent’s parents, or any person nominated by surviving parents;
  • Decedent’s siblings, or any person nominated by the siblings;
  • Nearest kindred, or any person nominated by them;
  • Representative of the estate of a deceased ward;
  • The Public Administrator;
  • A creditor of the estate.

The purpose of these priority classes was for the court to be able to appoint an estate representative in all situations, including when a deceased person has few to no close family members living. In most cases, the court will not have go beyond the first six classes to successfully appoint an administrator of the estate.

Illinois lists a few criteria for someone to be nominated or appointed as an administrator of an estate. A person must:

  • Be at least 18 years of age;
  • Be a United States resident;
  • Be of sound mind and mentally competent to handle matters of the estate; and
  • Not have been convicted of a felony.

Any heirs to an estate will be notified by the administrator of the court date in which the administrator will be formally appointed as the executor, and if there are any objections to be raised they can present them to the probate court.

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