In this article, we explain Illinois Probate and Estate Law 2020 as well as recent changes to Illinois Estate and Probate Law.  We answer:

  • What is Probate?;
  • When is Probate necessary?;
  • What is the Illinois Probate Process?; and
  • Recent changes to Probate in Illinois.

What is Probate?

Probate is a court case that oversees the process of collecting and disbursing the assets of an individual’s estate once he or she has passed away.  If the deceased (known from here on as the decedent) had a valid will and named someone to manage his or her estate, the court will appoint this person as executor of the estate, as long as he or she is fit to take on the role.  If the decedent did not have a will, the court will appoint an administrator to fulfill the responsibilities of an executor until the case comes to an end.  The purpose of probate is to account for the decedent’s entire estate and allocate said estate in accordance with the wishes of the deceased, once any and all debts of the decedent are paid.

When is Probate Necessary in Illinois?

Not all estates need to go through probate.  Generally, probate is required if the decedent:

  • Owned assets outside of a trust or “payable on death” account in excess of $100,000; or
  • Owned any real estate that was not held jointly with another person with a right of survivorship.

If neither of those statements apply to the decedent, the estate can be distributed through the use of a small estate affidavit.

For more information about the basics of probate, check out our article entitled What is Probate?:  Introduction to Probate in Illinois.

What is the Illinois Probate Process?

The probate process varies slightly depending on whether or not the decedent had a will in place at the time of death.  If there is a will in place, the estate is referred to as a testate estate.  If the decedent did not have a will in place, the term intestate estate is applied.  For the purpose of this article, I will focus on the probate process of a testate estate.

To learn more about intestacy laws and intestate estate, please read our article entitled How is an Illinois Estate Divided Without a Will? | Illinois Intestacy Laws.

To open a probate case in Illinois, the will and a number of necessary documents must be filed with the court.  Once the paperwork is filed, an initial hearing date will be scheduled.  At the hearing, the court will either appoint an executor or administrator to administer the estate, and admit the will or Probate.  After the will is admitted, the executor has 14 days to notify all “interested parties,” such as:

  • Heirs- people entitled to inherit in the absence of a will;
  • Legatees- people who stand to benefit according to the will;
  • Creditors- people to whom the deceased or the estate owes money; and
  • Those entitled to a spouse’s award or a child’s award.

At this time, all interested parties should receive a copy of the petition for probate, the order admitting the will to probate and appointing the executor, and a notice regarding the rights of the heirs and legatees.  A publication in a public newspaper needs to announce the passing of the decedent as well.  This must be done separately from the notice to heirs and legatees.  Creditors have six months to file a claim with the probate court after notice has been given.  

Next, the executor must take inventory of the decedent’s entire estate and submit it to the court within the first 60 days of the executor being appointed.  During a supervised administration, the executor is required to follow a court-ordered schedule with periodic accountings and check-ins.  Independent administration is less overseen by the court, but the executor is held accountable and can be punished for keeping inaccurate records.

Finally, once all debts are paid, the executor is to distribute the rest of the estate to the beneficiaries in accordance with the will of the deceased.  Also, a verified final report must be filed with the court.

To learn more, see our article entitled The Illinois Probate Process Explained.

Recent Changes to Probate in Illinois

The most notable change to probate law is the addition of the Illinois Trust Code (ITC).  The ITC is based off of a unified standard called the Uniform Trust Code (UTC), which has been implemented in 33 states.  Most of the changes outlined in the ITC are optional and can be waived by the creator (known as the settlor) of the trust, but other statutes, such as the information an executor must provide to each beneficiary, must be followed under any circumstances.

For detailed information about the ITC and the changes it brings to Illinois Probate Law 2020, check out our article entitled The Illinois Trust Code Explained | Changes to Illinois Trust and Estate Law for 2020.