When a testator dies, the Illinois Will needs to be admitted to probate (proved and accepted by the court) in order to be effective. This section covers the probate process of Illinois Wills.
Filing the Will
Any person who has an Illinois Last Will and Testament in their possession must file it with the clerk of court immediately upon the testator’s death. 6-1
Petition for Probate
If the Will names an executor, that person must file a petition with the court requesting the Illinois Will to be admitted to probate. The executor has 30 days to either file the petition or a declaration refusing to act. 6-3
Any person desiring to probate the Will also has the right to file a petition for probate. 6-2
If the executor fails to petition within the 30 days, then the court may proceed to probate the Illinois Last Will without a petition (unless probate is unnecessary). 6-3
Notice of Probate Hearing
Notice of the hearing needs to be given to all such interested persons as the court directs in accordance with Illinois Probate Law. 6-3
Proving the Will
An Illinois Will may be proved by statements of the witnesses, whether by oral testimony, affidavit or in the Will itself. The court may accept the statements and admit the Last Will to probate merely on the face of the attestation clauses in the Will (unless there is proof of fraud, forgery, compulsion or other improper conduct which would be deemed sufficient to invalidate the Will). 6-4
If there are objections to the Illinois Last Will & Testament, further proof will be required of the attesting witnesses.
When an Illinois Will is admitted to probate, the court must also issue letters testamentary to the executor named in the Will. Letters is the document formally appointing the executor as personal representative. 6-8
If the executor refuses, does not qualify or is not named, then the court may issue ‘letters of administration with the will annexed’ to appoint a personal representative. 6-9
Preference is given in the following order: s9-3
- A legatee (children legatees given preference);
- The decedent’s children;
- Brothers and sisters;
- Nearest kindred
- Representative of the estate of a deceased ward;
- Public administrator
- A creditor of the estate.
Where an estate is worth $100,000 or less, personal property may be transferred using an affidavit. The Illinois Will needs to be filed with the clerk of court and a certified copy attached to the affidavit.
Once the affidavit is accepted by the court, it may be used to collect or transfer the decedent’s property to the persons entitled or to the appointed agent. S25-1
Illinois Estate Tax
Where the decedent died in 2009 an Illinois estate tax return (Form 700) needs to be filed if the estate is worth $2,000,000 or more. The representative must also complete a federal return Form 706 even if no federal tax return is required to be filed with the IRS.
The forms must be filed with the estate tax section of the Illinois attorney general’s office.