In Illinois, probate is a court proceeding completed when someone dies. Filing a probate case in court is called “opening a probate estate.”
When a probate estate is opened, the judge will appoint a representative to administer assets. The representative is called an administrator (when the Decedent died without a will) or executor (when the Decedent died with a will).
Administering assets means:
- Creating a list of property the Decedent owned and listing every item’s value on the Decedent’s date of death
- Collecting and securing all the property
- Liquidating all the property
- Accounting for how the property should be distributed, and
- Making distributions.
The representative will work with their attorney and the court to ensure all assets are distributed correctly according to Illinois law.
In Illinois, a probate estate is required when a Decedent dies leaving real estate titled in their name, or assets titled in their name valued at $100,000 or more. Assets include real estate, bank accounts, lawsuits, and any other property in the Decedent’s name.
If the Decedent didn’t own real estate when they die, and if the Decedent’s estate will be less than $100,000, then you can administer the Decedent’s estate using a small estate affidavit.
In Illinois, the Supreme Court stated that if someone has standing to file a lawsuit, but dies before it is filed, a probate representative needs to be appointed to file the lawsuit on behalf of the Decedent. This is called a “Survival Act” lawsuit.
A representative’s attorney has a duty to all of the beneficiaries of the estate, so the attorney represents the administrator in their role as a fiduciary, not in their role as an heir or claimant. A representative’s job is to make sure that there is as much property in the estate as possible, that all of the parties entitled to the property are properly notified, and that all property is distributed in accordance with the law of Illinois. The representative’s attorney advises the representative on how to do this. An estate attorney cannot represent a representative to the detriment of the other estate beneficiaries. For example, if a representative paid for the Decedent’s funeral, he/she/they would have to hire their own lawyer to present a claim for reimbursement from the estate.
Not necessarily. If you agree with the information the representative is providing to the court and the manner in which they are acting, you do not need a lawyer to represent you. However, if you believe the representative is providing inaccurate information, or if you would like to contest any of the representative’s actions, you must hire your own lawyer. You are not allowed to represent yourself pro se in probate court.
Representing yourself in court without a lawyer is called pro se representation. You are not allowed to represent yourself pro se to administer a probate estate.
SOL stands for Statute of Limitations. The SOL marks the maximum amount of time in which legal proceedings may be initiated on the Decedent’s behalf. As probate attorneys, we do not know what the SOL is on anyone’s particular lawsuit.
It generally takes 2-3 months to open a probate estate. Thereafter, if there are many assets, it could take 1-2 years to collect them all, liquidate everything, and distribute the estate. If there is a lawsuit, it generally takes another 60-120 days after the lawsuit settles to distribute the proceeds and close the estate.
Here is a typical timeline for probate:
Day 1: A potential client calls our office and we determine whether the case is a good fit for our firm.
Day 3: An associate reaches out to the client on a 30-minute intake phone call to gather all the information required to open the estate. We cannot proceed to the next step until we have complete information.
Day 10: Our firm mails prepared forms to the client and to all heirs. We cannot proceed until we have signed documents back from the client.
Day 24: Our firm e-files the documents to open the probate estate.
Day 27: The court reviews the filing and automatically assigns a court date.
Day 60: An associate appears in court to open the estate.
Day 70: The court uploads the opening orders and sends them to our firm.
Day 75: A notice is published in the local newspaper alerting creditors that the estate is opened and giving them 6 months to file claims against the estate.
Month 8: Creditors claims are barred. Distribution of assets can commence.
Beginning 14 months after the probate estate is opened, our office appears annually in court to update the judge on the progress of estate administration.
If there is a lawsuit in the estate, we will wait until it concludes to close the probate estate. This can take years, and we recommend reaching out to your law division attorney for status updates.
Once our office receives the entered order from law division, a new timeline begins to close the estate:
Day 1: We receive the order from law division
Day 5: We mail documents to the representative and heirs to sign. We cannot proceed until we have signed documents back from everyone.
Day 21: We e-file the documents and request a court date.
Day 45: We appear in court to approve the settlement.
Day 60: All distributions are made from the settlement.
Day 90: Our office appears in court to close the estate.
The claims period is the period during which creditors can file claims against the estate. When we open an estate, we will publish a notice in the newspaper within 14 days of opening. The claims period expires 6 months after the first publication date.
Assets in the estate will be distributed after the claims period has expired. If there is a law division settlement, it will be distributed approximately 60-120 days after it is approved by a judge, but it can be longer depending on how long it takes everyone to return signed paperwork to our office.
· A Death Certificate for the Decedent.
· The address where the Decedent lived prior to death.
· The date of birth and death of the Decedent.
· Whether the Decedent had an estate plan like a will or a trust. If so, all of the contact information for the beneficiaries and witnesses in the will and trust, and the location of the original will.
· Names, addresses, phone numbers, and e-mail addresses for all the Decedent’s living relatives.
· Names of the Decedent’s former spouses.
· Whether the Decedent owned any property when they died and what it is worth.
· Whether anyone took care of the Decedent prior to their death.
· Who paid for the final arrangements.
· Whether the Decedent owed any money on death (credit cards, taxes, etc.)· Birth certificates for the Decedent’s children.
If the Decedent did not have a will, Illinois law governs who inherits from the estate. Illinois law distributes all property per stirpes. For example, property goes to the Decedent’s spouse and children. If the Decedent did not have a spouse or children, property goes to the Decedent’s parents and siblings. A representative has a duty to provide full and accurate information to the court regarding the identity and whereabouts of all of the Decedent’s relatives who stand to inherit from the estate. Withholding this information is perjury and is a crime.
If a relative is so estranged that they cannot be found, their share will be deposited in the treasurer’s office in the county where the probate estate is opened.
A representative has a duty to provide full and accurate information to the court regarding the identity and whereabouts of all of the Decedent’s relatives who stand to inherit from the estate. Withholding this information is perjury and is a crime.
If the information is unknown, a representative must use estate assets to hire an investigator to look into the identity and whereabouts of the Decedent’s relatives.
If there is a will – the estate will be distributed per the will. The original wet-ink will must be filed with the court for it to be valid.
If the Decedent did not have a will – the estate will be distributed per stirpes. Per stirpes is the default method that an estate is distributed when there is no will.
Per stirpes examples:
The Decedent has a surviving spouse and two children: 50% will go to the surviving spouse, and the other 50% will be split between the children (25% to each child).
The Decedent has three children but no surviving spouse: the estate will be distributed evenly to the children (33% each). IF one of the children has passed, then the 33% will be split between their children (the Decedents grandchildren).
The Decedent was never married and had no children. The Decedent had four siblings: the estate will be distributed equally to each sibling. Illinois does not differentiate between full and half siblings.
Note: administrative fees will be paid from the estate first.
No. One of our attorneys will appear in court on your behalf. If you wish to be present, let someone in our office know beforehand.
Our office only handles the probate case and does not know the status of your law division case. We recommend reaching out to the law firm handling the lawsuit for a status update.
Yes, for hourly matters.
Yes, this is known as a Funeral Claim. You must file a funeral claim within 2 years of the Decedent’s death to collect, so contact an attorney if you believe you have one.
Yes, if you were the Decedent’s spouse, parent, brother, sister, or child and you lived with the Decedent for 3 or more years. This is known as a Custodial Claim. You must file a custodial claim within 2 years of the Decedent’s death to collect, so contact an attorney as soon as you believe you have one.
An estate has several options for real estate
- The property may be sold on the open market and the proceeds added to the estate for distribution.
- The property may be distributed to an heir or legatee in lieu of a cash distribution as part of their inheritance. The representative would need an appraisal for this method.
- A beneficiary of the estate may agree to buy the other heirs or legatees out. The representative would need an appraisal for this method.
- The property may be deeded to the heirs per stirpes or to the legatees under a will.
An estate has several options for a car
- The vehicle may be sold and the proceeds added to the estate for distribution.
- The vehicle may be distributed to an heir or legatee in lieu of a cash distribution as part of their inheritance. The representative would need an appraisal for this method.
- A beneficiary of the estate may agree to buy the vehicle from the estate.
The administrator fee is a fee that the administrator or executor may collect for time spent working on a Decedent’s estate.
If you are an administrator or executor and wish to collect a fee, be sure to record any time spent working on the estate.
If you receive this, it is called an “estate claim.” You need to let us know so we can handle the claim appropriately. Do not pay the claim without talking to us first. Some claims never have to be paid, and a Decedent’s family is never personally responsible for paying the Decedent’s bills.
A Survival Action is a lawsuit that the Decedent would have been able to pursue if they were still alive and goes to their estate, while a Wrongful Death Action is compensation to the Decedent’s family for emotional damages caused by the Decedent’s suffering.
You will need a Family Settlement Agreement.
If you can’t locate the will after looking thoroughly, we will proceed as if there is no will (intestate). If you find the will after the estate is opened, we will let the court know so that we can proceed with the will (testate).
We recommend making a copy of the will before filing the original. The court where the will is filed can also provide you with a copy.
Decedent – a person who has passed away.
Creditor – a party who is entitled to be paid from the Decedent’s estate. Usually this is the IRS, a credit card company or a medical bill. However, family members can also be creditors if they paid for final expenses or cared for the Decedent full-time prior to death.
Administration – inventorying, collecting, liquidating, and distributing a Decedent’s estate. Administration may either be Independent or Supervised.
Administrator – a court-appointed representative to administer the estate when the Decedent did not leave a will. Administrators can either be Independent or Supervised.
Inventory – a list of all the property in the Decedent’s name at death and the approximate value on the date of death.
Accounting – a record of all of the details of administration. An Accounting shows the inventory, receipts liabilities, disbursements, and distributions of the estate. Accountings must be prepared and sent to estate beneficiaries annually.
Title – ownership. If a Decedent owned a home, we say the home was titled in the Decedent’s name. If the Decedent had a bank account, we say the bank account was Titled in the Decedent’s name.
Asset – An asset is a piece of property. The following are all examples of assets: a bed, a car, a house, a bank account, or cash.
Estate – An estate is made up of someone’s assets. If a Decedent owned a car, a house, and had $1000 in the bank when they died, then we say the Decedent’s estate is made up of a car, a house, and $1000.
Beneficiary – anyone who is entitled to a distribution from the estate. Heirs, legatees, and creditors are all estate beneficiaries.
State’s Attorney – The State’s Attorney represents unknown heirs, because their share will be deposited with the county treasurer and eventually escheat to the State of Illinois.
Representative – the court-appointed party who administers a probate estate. A representative can be either an administrator or executor
Independent Administration – This is when a representative is allowed to perform all the steps of administration without getting permission from court to perform each step.
Supervised Administration – This is when a representative must get a court order before performing any acts of administration.
Pro Se – when a person represents themselves in a legal proceeding instead of hiring a lawyer. Parties are not allowed to represent themselves pro se in probate proceedings.
Creditor – A creditor is generally someone the Decedent owed money to before they died, such as credit cards or loans. But a creditor may also be someone who is entitled to reimbursement from the estate because they paid for a funeral claim, or because they are seeking compensation.