Do I Have to File a Will in Illinois?

If you’ve seen a lot of Old Hollywood movies, you might have seen a dramatic scene in which some official gathers a recently deceased person’s friends and family together for a “reading of the will.” While these dramatic revelations make for good drama onscreen, they don’t generally happen too often in real life. 

While a decedent’s will must become public record, this isn’t usually done through a fireside reveal but instead by filing the will with the probate court of the county in which the decedent resided. Filing the will is the first step in beginning the estate administration process, which may or may not require probate depending on the contents of the decedent’s estate. 

Filing a Decedent’s Will In Illinois

If the decedent had a will, then the person in possession of it must file it with the clerk of the circuit court in the county where the decedent resided at the time of their death. This should be done “immediately upon the death of the testator,” and must be done within 30 days, regardless of whether a probate estate will have to be opened in court. Deliberately altering or destroying a will, or failing to file it within 30 days after the death of the testator, is considered a Class 3 felony under Illinois law. 

All original wills which are admitted to probate shall remain in the custody of the clerk, unless otherwise ordered by the court. The executor of the will can obtain certified copies of the will to utilize for the administration of the estate, as necessary. 

Broadly speaking, for a will to be considered valid in Illinois, it must be in writing and signed by the decedent, and witnessed and signed by two other credible individuals in the presence of the testator who believe the testator to be of sound mind and memory at the time of signing. Any will that meets these standards can be admitted to probate; a will may be invalidated if there is proof of fraud, forgery, compulsion or other improper conduct. 

Sometimes, obtaining the original version of a decedent’s will is more easily said than done. Ideally, the executor, at the very least, should have an idea of where the original will is and how to access it. This is an important matter to discuss with your loved ones while you have the chance; make sure you know how to locate their will, trust documents, and financial and personal records in case of an unexpected accident or emergency. It is extremely important that a will can be found; without one, it will be presumed that you have died intestate — which means that the state of Illinois will determine how your assets will be distributed, without you or your loved ones getting any say in the matter. 

In some cases, obtaining the original version of a decedent’s will might mean having to access a safety deposit box. Accessing a safety deposit box is easiest if one or more family members of the decedent are given authority to access the box. If the owner did not give that authority when they were still alive, Illinois law allows for the bank to open the box with a family member present to search for a will “upon being furnished with satisfactory proof of death of a sole lessee or the last surviving co-lessee of a safe deposit box,” if it is believed that the safety deposit box may contain a will or burial documents.

What Happens After a Will Is Filed?

Once you have filed the will with the appropriate circuit court, the estate administration process can begin in earnest. 

Determining If Probate Is Necessary

In Illinois, probate can be avoided if the gross value of the decedent’s personal estate is $100,000 or less, and there is no real estate involved. In such instances, this would require an affidavit called a Small Estate Affidavit, which summarizes the contents of the person’s estate and how they should be distributed. An attorney can help you understand if this may apply to your situation. 

Here in Illinois, many savvy individuals also take steps to avoid or streamline probate through thoughtful estate planning. There are certain types of assets that do not need to go through probate, including:

  • assets held in a revocable living trust 
  • assets owned with another party through joint tenancy or tenancy by the entirety
  • assets with a transfer-on-death or payable-on-death beneficiary designation 

Probate Administration

Once the original will has been filed, the executor named in the decedent’s will is responsible for filing a petition to probate the will within 30 days, or refusing to accept their position as executor. If they fail to act within 30 days, the court may deny them the right to act as executor. The petition must include: 

  • 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 petitioner believes the will to be the valid last will of the testator
  • the approximate value of the testator’s real and personal estate
  • the names and post office addresses of all heirs and legatees of the testator and whether any of them is a minor or a person with a disability
  • the name and post office address of the executor
  • unless supervised administration is requested, the name and address of any personal fiduciary acting or designated to act

After the will is admitted to probate and the executor formally accepts their appointment, the court will issue letters testamentary (also known as letters of office), which empower the executor to act as a representative of the estate and carry out their duties. An executor may be required to post a bond.

Concurrently, the executor must properly notify all heirs and legatees of the estate about the probate proceedings within 14 days, and publish proper notice for creditors of the estate so that they can file their claims within a six-month window or be barred. 

During the estate administration process, the executor will be responsible for a number of important duties, including collecting and inventorying estate assets and providing an accounting; paying or resolving debts and liabilities of the estate; distributing estate assets to the appropriate parties; and properly closing the probate estate. This process may be complicated or lengthened if there are any contested issues that must be resolved, or if there are particularly complex estate assets that must be dealt with (such as ancillary property owned outside of the state of Illinois, as an example). 

Depending on the circumstances of the case, keep in mind that the decedent’s estate may be administered under summary administration, supervised administration, or independent administration. With independent administration, the executor can move forward with their duties without requiring direct supervision from the court; in supervised administration, the court must give its approval for all major estate actions before the executor can act. Broadly speaking, supervised administration is more time-intensive and often more expensive, and is typically only required when there is a litigated or contested estate matter involved. Your attorney will help you determine which route is most appropriate based on your unique situation.

What If There Isn’t a Will?

If there is no will, then the decedent’s estate is said to be intestate. In such circumstances, an administrator must be named. This requires filing a petition for letters of administration. Generally, people are entitled to preference to serve as administrator in the following order: 

  • The surviving spouse or any person nominated by the surviving spouse.
  • The legatees or any person nominated by them, with preference to legatees who are children of the decedent
  • The children or any person nominated by them
  • The grandchildren or any person nominated by them
  • The parents or any person nominated by them
  • The brothers and sisters or any person nominated by them
  • The nearest kindred or any person nominated by them
  • The representative of the estate of a deceased ward
  • A public administrator
  • A creditor of the estate.

Interested in Learning More About Illinois Probate and Estate Administration?

Curious about what it might take to navigate a decedent’s estate through probate in Cook County? Curious about how you can simplify or streamline the probate process through proactive and comprehensive estate planning? The Law Offices of J. Jeltes, Ltd. is here for you.

In the event you find yourself dealing with one’s estate or assets through probate court, or, if there is a contested matter involving a will or trust, our experienced team can help you navigate through the administrative and legal process. Settling one’s financial matters after a death, with both family members and creditors, can be daunting. Our experienced legal professionals have experience with both contested and uncontested estates, asset division, and probate administration. Our team can help you navigate the routine steps and unexpected challenges that may arise during this trying time — from taking care of minor and disabled heirs and legatees to dealing with creditors or unfunded trusts. 

Founded in 2009 and offering more than 20 years of combined experience, the attorneys and staff at The Law Offices of J. Jeltes work together to provide skilled, efficient, and affordable legal representation to individuals and families going through major life transitions in the Chicagoland area. 

We know that every situation is unique, and our skilled team will work with you to efficiently and effectively meet your goals, while bringing true compassion and meaningful experience to the table. 

Have any more questions about probate administration or estate planning? Don’t hesitate to get in touch to begin the conversation.