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:
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.
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
An estate has several options for a car
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.
Vocabulary:
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.
Estate planning is a process by which a person makes legal arrangements to most efficiently and effectively manage and transfer property both during life and after death according to your goals. Estate planning also involves the minimization of taxes, providing for personal care and property management during periods of incapacity and providing for the custodial care of any minor or adult dependent children.
Dying without any estate plan in place is known as dying “intestate.” This means that in Illinois, if you have over $100,000 in assets, you’ll need to go through a process called probate court. It is an expensive and lengthy process where your assets are distributed based on the judgement of the court. You need to create your own estate plan if you care about how your property is handled and disposed of after your death, or during periods of incapacity.
No. In fact, for most people taxes are well down on the list of concerns. Minimizing taxes is handled in an estate plan, but estate planning is to ensure that you choose where and how your assets are distributed on incapacity or death.
Yes. Joint property is only a portion of what your “estate” is made up of. IRA Accounts, Bank Accounts, Stock Holdings are all a portion of your estate. While holding joint property can be an estate planning tool, it is normally not solid enough to keep your assets out of probate on incapacity or death.
Life’s Plan Incorporated Trusts are a Medicaid planning tool used to maintain Medicaid eligibility and to pay for needs that Medicaid does not cover. Examples of allowable distributions under these trusts are: recreation & leisure activities like vacations and travel, home & grooming maintenance, transportation, medical care not covered by Medicaid, health & life insurance, and education & training.
This is not an exhaustive list, if you would like more information on the types of assets you can and cannot purchase under Medicaid Spend-Down, please see our free resource on Spend-Down Options: LINK TO RESOURCE
Bielski Chapman, Ltd. only engages in trust-based estate plans. This is because a sole will and other a-la-carte documents, such as a Power of Attorney for Property, will not satisfy a secure estate plan and keep you out of probate. Our Basic Estate Plans include:
Yes! Building your estate plan is important for yourself just as it is for your beneficiaries. Upon your incapacity, you’ll be able to choose who takes care of you and implement specific wishes for the fiduciary doing so. You can also leave your inheritance to whomever you please, including charities, family members and friends.
A qualified estate planning attorney can help ensure that your estate plan is structured and implemented to your exact wishes. Estate Plans are difficult to draft and without an attorneys help, can lead to many problems post signing. Do-it-yourself estate planning can cause more problems upon incapacity or death if it is not looked over by an attorney.
To begin with, our plans require a fully completed questionnaire which we provide. An estate planning attorney is going to need basic information and data on you, your family, your beneficiaries, your assets and your desired fiduciaries. To hold our Design Meeting, we will need a fully completed questionnaire. You can find our Confidential Estate Plan Questionnaire here:
https://bc-lawyers.com/estate-planning-resources/
Depending on a client’s specific situation, a different type of estate plan may be necessary. For those who may need long term care our firm drafts a Supplemental Needs Trust which ensures you or a family member receives the best care pertaining to their specific wishes.
Another type of estate plan is called a Medicaid Asset Protection Trust which allows the client to remain eligible for Medicaid in the event of a windfall or other unforeseen circumstance that may render them ineligible for Medicaid. Please see our blog for more information on this type of trust: https://bc-lawyers.com/protecting-ssi-and-medicaid-benefits-in-illinois/
There are many different types of trusts that our firm can draft, however, it is important to set up a free 15-minute consultation to speak with a case manager or attorney who can better understand your situation and give you the best direction regarding your estate plan.
LGBTQ+ estate planning is the process of creating legal documents that protect your partner(s), spouse, children, chosen family, property, health care wishes, and legacy. For LGBTQ+ individuals and families in Chicago, an estate plan ensures the people you trust are legally recognized and able to act for you if you become incapacitated or pass away.
A strong LGBTQ+ estate plan includes a revocable living trust, pour-over will, powers of attorney for health care and property, HIPAA authorization, a living will, beneficiary updates, funding instructions, personal property memos, and memorial instructions.
Estate planning is especially important for LGBTQ+ individuals and families because Illinois law does not protect every relationship, parenting arrangement, or chosen family structure.
If you are unmarried, transgender, polyamorous, raising children through assisted reproduction, part of a blended family, or want to provide for a chosen family, an estate plan will make your wishes clear and legally enforceable.
Dying without an estate plan is called dying intestate. In Illinois, intestacy laws follow strict formulas that may not match your wishes. Without a will or trust, the court decides who inherits from your estate.
This can create challenges for LGBTQ+ individuals who want to leave assets to an unmarried partner, multiple partners, chosen family members, friends, charities, or someone outside the default family structure. Probate may also be required if you die with real property titled in your name or assets titled in your name valued at $150,000 or more.
Yes. Marriage provides important legal rights, but it does not replace a complete estate plan. Married LGBTQ+ people may still need a revocable living trust, pour-over will, powers of attorney, health care directives, and updated beneficiary designations.
An estate plan determines who manages assets, who makes medical decisions, how children or dependents are protected, and what happens if both spouses pass away.
Yes. Estate planning is essential for unmarried LGBTQ+ partners in Illinois. Without proper documents, an unmarried partner will not have inheritance rights, financial authority, or legal decision-making power during a medical emergency.
A trust-based estate plan can name your partner as a beneficiary, trustee, agent under power of attorney, or health care decision-maker, depending on your goals.
Yes. Estate planning allows you to name the people who matter most to you, including chosen family, close friends, partners, stepchildren, caregivers, charitable organizations, and community groups.
This is especially important for LGBTQ+ individuals who may be estranged from biological relatives or who want their estate plan to reflect their real support system.
An estate plan can include powers of attorney and health care directives that name the person you trust to make decisions if you cannot speak for yourself. In Illinois, a power of attorney for health care allows you to choose a health care agent in writing.
For LGBTQ+ partners, unmarried couples, and chosen family members, these documents prevent confusion, conflict, or unwanted court involvement.
LGBTQ+ parents should make sure their estate plan addresses guardianship, inheritance, trustee choices, parental roles, and care instructions for minor children or dependent adults.
This is especially important for families formed through assisted reproductive technology, adoption, prior relationships, or blended family structures. Clear planning protects children and reduces the risk of disputes.
Yes. Estate planning is important if you do not have children. Your plan will determine who receives your property, who manages your finances, who makes medical decisions, and who handles your affairs after death.
For LGBTQ+ individuals in Chicago, this can be especially helpful if you want to leave assets to a partner, friend, sibling, nibling, a charity, an LGBTQ+ organization, or another chosen beneficiary.
No. Tax planning can be part of estate planning, but it is not the main concern for many families. For LGBTQ+ individuals and families, estate planning is about protecting loved ones, avoiding probate, documenting health care wishes, reducing conflict, and making sure the right people have legal authority.
Yes. Joint ownership may help with some assets, but it does not cover everything. Retirement accounts, bank accounts, business interests, personal property, life insurance, digital assets, and future inheritances may still need separate planning.
Joint ownership also does not fully address incapacity, health care decisions, backup beneficiaries, trustee choices, or what happens if both partners pass away.
A comprehensive LGBTQ+ estate plan may include a revocable living trust, a pour-over will, powers of attorney for health care and property, a HIPAA authorization, a living will, a beneficiary designation review, funding instructions, a personal property memo, and memorial instructions.
Bielski Chapman’s basic estate plans include a revocable living trust and pour-over will, powers of attorney for health and property, health care directives, funding instructions, personal property memos, and memorial instructions.
Yes. A properly funded trust-based estate plan avoids probate. Probate is the court process used to administer certain assets after death.
For LGBTQ+ individuals and families, avoiding probate can also help reduce the risk of disputes from relatives who may not understand or accept your relationship, identity, chosen family, or wishes.
You will need to decide who to leave your property to, who will manage your trust or estate, who will make financial decisions if you are incapacitated, who will make health care decisions, and who should care for minor children or dependents.
You should also name backup choices, including successor trustees, alternate agents, and contingent beneficiaries.
Yes. Your estate plan can include gifts to LGBTQ+ nonprofits, advocacy organizations, community centers, health organizations, schools, or other causes that matter to you.
Charitable planning is a great tool to leave a legacy that protects the causes you care about.
Working with a Chicago LGBTQ+ estate planning attorney ensures your plan reflects Illinois law, your family structure, and your personal goals. LGBTQ+ estate planning often involves issues that standard forms may not fully address, including chosen family, unmarried partnerships, non-biological parenting, assisted reproduction, blended families, and privacy concerns.
Bielski Chapman is a queer-owned firm that understands chosen family, blended families, assisted reproductive journeys, clarity, and dignity.
The first step is to gather information about your family, partner(s), chosen family, assets, beneficiaries, health care wishes, and the people you trust to make decisions.
Bielski Chapman offers estate planning resources and serves LGBTQ+ individuals and families throughout Chicago, the Western Suburbs, and the North Shore.
