How Probate Laws Work in Illinois

If you have recently gone through the death of a loved one, you are probably dealing with the grieving period now. Unfortunately, practical issues must still be resolved during this difficult time. One of the most pressing and important issues is what to do with the person’s estate. To resolve this issue, you may need to go through probate. 

Probate is a legal term that means that you must file the will with the court before you can disperse the person’s property. This process is often lengthy and can be quite complicated, but you should understand some of the basics as you proceed. 

Is Probate Required in Illinois?

Probate may be required in Illinois, depending on what assets the deceased person owned and if they owned them alone or jointly with another person. However, there are formal and informal probate options for an estate. An estate may qualify for informal probate if the assets are valued at less than $100,000. 

How Do You Avoid Probate in Illinois?

There are a few ways to avoid going through probate if the estate is in Illinois. One of the best ways is to put the estate in a living revocable trust. In this case, all assets will go to the named beneficiary of the trust. You can also avoid probate if assets are owned with another person in joint tenancy or by tenancy by the entirety. Assets that have a named beneficiary will automatically go to the person without having to go through probate. Examples include bank accounts with a payable on death or life insurance policies. Real estate that includes a transfer on death deed can also avoid probate in Illinois. 

Can an Executor of an Estate in Illinois be Compensated?

The Illinois code does allow for the executor to be paid for their role in the administration of the estate. They aren’t required to charge a fee, which may be the case if they are also an heir. However, it is acceptable to do so because the administrator’s fee is a higher priority than the heirs’ portion of the estate.

How Much Does an Executor Get Paid in Illinois?

The Illinois statutes don’t set specific rates for payment. However, it is stated that they can receive a reasonable fee. What constitutes reasonable is often left up to the court. A higher rate may be charged if the estate is complex. They will need to keep an accurate record of tasks completed for the estate. The law provides for an hourly fee in place of a percentage of the estate.

How Long Does Probate Take in Illinois?

There is no specific timeline for how long probate will take in Illinois. An informal proceeding will usually go much faster than a formal probate. With formal probate, creditors must be given time to present their claims. The executor must also take inventory of all assets, which can take some time. If there are disputes, they must be resolved before the process can be completed. Time can vary widely, but you can expect between six months and a year to be typical for estates to be in probate. In complicated situations with delays, it can be several years before probate is closed.

Do All Estates Have to Go Through Probate in Illinois?

Not all estates must go through formal probate in Illinois. It is possible to have a small estate affidavit if the estate is worth less than $100,000 and there is no real estate involved. Instead of filing formal probate, the person who is the heir will use an affidavit to claim the estate. You may need to fill out a special affidavit at the institution where the asset is held. For example, a bank may have their own form if you are claiming a checking or savings account. You may also need to provide a copy of the will and death certificate.

Does a Will Have to Be Probated in Illinois?

Yes. The state law requires that all wills be entered into court to determine validity. The court’s job is to ensure the will is valid and that no disputes arise. If someone disputes the will, the court must determine if the dispute is valid.

Settling an Estate in Illinois

Settling an estate through probate in Illinois is much like in any other state. However, each state does have specific timelines and other details that may be unique. It’s important to know the steps and ensure everything is completed as stated in the state code.

How Long Do You Have to File Probate After a Death in Illinois?

Once a person is made aware that they are the executor, they have 30 days from that time or the time the person died to present the will to the court. If they fail to do so, they may be denied the right to act as executor even if they were named as such in the will.

Probate Court in Illinois

Illinois requires estates to file a probate petition in the county where the deceased person lived with the Circuit Court. Some of the larger counties have a special probate division within the court to handle these cases.

Probate Code in Illinois

Illinois has its own probate code in the Illinois Code 755 ILCS Section 5. The code is listed on the Illinois government website: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2104.

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