Filing a Will in Illinois
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Illinois law requires any person holding a decedent's will to file the will within 30 days after the decedent's death. The proper place for filing a will and opening the decedent's probate estate is generally at the courthouse in the county where the decedent last resided and intended to remain. So if they lived in Cook County, but died at their winter home in Florida or on vacation somewhere, Cook County would be the court location.
Additionally, real estate must be administered separately in each state where real estate is situated. For example, if an Illinois resident decedent also owned Florida real estate in his/her sole name, then that property must be dealt with under Florida probate law and in most cases requires the administration of an "ancillary" probate estate in Florida. The attorneys we recommend only handle Illinois law, but many of them network with law firms in other states because of this issue.
Under Illinois law, any person who willfully destroys or alters a decedent's will or hides it for more than 30 days after the decedent's death may be found guilty of a Class 3 felony. This does not mean that a will cannot be filed after 30 days - it can be filed at any time.
However, if a will is not filed within 30 days of the decedent's death, family members may proceed as if the decedent died without a will. When a person dies without making a valid will, they die "intestate". When there is no will, state law dictates who is entitled to receive the decedent's assets and who the executor will be. Fights often ensue over the control and distribution of intestate estates.
Filing is not the same as probating. Filing simply means turning over the original will to the applicable county clerk's office. Probate requires the additional step of filing a petition, plus other required documents. Simply filing a will does not obligate a person to probate the estate or to take any further action, though such action may be desirable depending on the situation.
If the decedent left a will, the original will is presented to the court so that the court may make a determination as to whether or not the will is admissible to probate. In making that determination to admit the will of a decedent, the court only looks to see that the will meets the minimum requirements under Illinois for admission.
Those minimum requirements in Illinois are: that the will is in writing; and signed by the decedent; and signed by two adult witnesses, who signed in the presence of the decedent and in the presence of each other, believing the decedent to be of sound mind at the time he or she signed the will. If those minimum requirements are met, the will is admitted to probate.
Once the Illinois probate process begins, the court appoints a representative to manage the decedent's estate - an administrator, if the decedent died without a valid will, or an executor, if the decedent died with a valid will.
Once appointed, the executor or administrator is issued "letters of office." These are certificates issued by the Clerk of the court certifying to the world that the person shown therein has officially been appointed by the court to manage and control the decedent's estate.
The duties of the executor or administrator include:
- Publishing a notice in a local newspaper in regular circulation in the county in which the deceased person resided notifying unknown, potential creditors of the decedent that he or she has died, that an estate has been opened and that any claims against the decedent must be presented within 6 months of opening the estate.
- Mailing the same type of notice directly to any known or suspected creditors of the decedent.
- Notifying the heirs of the decedent that the estate has been opened, and, if applicable, that the decedent's will has been admitted to probate. Heirs have 6 months from the date of the appointment of the executor or administrator to challenge and contest the will.
- Collecting the assets of the probate estate. Typically, the executor or administrator will collect all the assets of the decedent and deposit them into one central bank account in the name of the estate. Any real estate or stocks and bonds of the decedent will be sold and turned into cash.
- Dealing with any claims of any creditors of the decedent that are presented to the estate during the 6-month claim period.
- Paying the decedent's final income and, if applicable, estate taxes.
- Preparing and presenting an accounting of all of the financial dealings of the estate for the review and approval of the estate beneficiaries.
- Distributing the estate and closing the estate in court.
Executors and administrators typically hire an attorney to help them effectively navigate the probate process, as well as locate and identify the appropriate heirs. The probate process in Illinois can be very confusing and complex. Hiring experienced legal assistance in this area helps to avoid excess costs that could reduce the value of the estate.
If you have any questions about filing a will in Illinois, or need a recommendation of the right lawyer for your case, please contact us.