Probate Process Overview

The probate process offers a procedure by which a deceased individuals estate and legal affairs can be resolved in accordance with the individuals estate planning instruments.  An individuals estate will be distributed in accordance to his or her last will and testament, or if there is no last will and testament or simple will, then as proved by the Illinois rules of decent and distribution.  Assuming there is a valid last will and testament (pursuant to Article IV of the Illinois Probate Act, the will should be subject to probate in the county where the individual’s place of domicile or residence.  The last will and testament must be filed with the probate court within thirty days after the individuals death in accordance with the Probate Act.  The individuals elected representative of his or her estate generally will be the person responsible to the estate’s beneficiaries as well as the probate court for the effective and efficient estate administration of the last will and testament.  The probate process, at a minimum, will continue for a duration of six months from the date of the first publication to the estate’s creditors in the local newspaper (not the date of the individuals death).  During the six month period, the elected (or appointed) estate representative will have the obligation to secure all the assets of the estate, pay all of the individuals debts and estate liabilities, and generally resolve the individuals legal affairs.  When all the debts are paid and liabilities addressed, the estate representative will be responsible for the distribution of the balance of the estate assets to the individuals beneficiaries.

Proving the Last Will and Testament

In brief, a last will and testament is a legal document that gives elects a trusted person to act as the financial representative after an individuals death and also directs how that individuals assets are to be distributed in accordance with a specific set of instructions.  During the probate process, the probate court will determine whether the last will and testament is a valid and enforcement legal document.  The individual, or testator, must be:

  • 18 years of age.
  • Of sound mind and memory.
  • Power to bequeath (leave, hand down) his or her real property and personal assets of the estate.
  • Under no undue influence of other people when establishing the will.
  • The will must be in writing, signed by two credible witnesses.

Presentation of Last Will and Testament for Probate by Executor

Within thirty days after a person is notified that he or she is the named executor of the last will and testament of a deceased individual, he or she must institute a proceeding to have the last will and testament admitted to probate.  If the executor fails to do so, except for good cause shown, the probate court may deny the executor the right to act as executor.  When thirty days have elapsed since the death of the individual and no petition has been filed to admit the last will and testament to initiate the probate process, the probate court may proceed to probate the will.  A notice of the hearing on the admission of the last will and testament to probate will be sent out to all persons in interest as the probate court directs.

Petition to Admit Last Will and Testament

The executor must file a petition in the probate court to has a last will and testament admitted.  The petition must state:

  • The name and place of residence of the testator at the time of his or her death.
  • The date and place of death.
  • The date of the will and the fact that the petitioner believes the will to be the valid last will and testament of the deceased individual.
  • The approximate value of the testator’s real and personal estate in Illinois.
  • The names and addresses of all heirs and legatees of the deceased individual or testator and whether any of them is a minor or disabled person.
  • The name and address of the executor.
  • Unless supervised estate administration is requested, the name and address of any personal fiduciary acting or designated to act pursuant to the Probate Act.

When the last will and testament incorporates a trust, whether a testamentary trust, revocable trust, or another type of trusts, the petition must state the name and address of the trustee, the petition need not state the name and address of any beneficiary of the trust who is not an heir or legatee.

Contact Our Chicago Law Firm

From small estates to complex estates, our Chicago probate attorneys would enjoy the opportunity to discuss providing counsel through the probate process.  For additional information about our estate planning and probate practice, please call our law office or email one of our attorneys.