The loss of a loved one is an incredibly difficult life transition to navigate. In addition to the emotional upheaval that accompanies a loss, this moment can also require you to navigate the probate process and guide your loved one’s estate through the Illinois court system — which can be time-intensive, stressful, and costly.
As a result, one extremely common question that our team of life transition attorneys hears is, “how long does probate take in Illinois?”
This question is important — but, unfortunately, it is also quite multifaceted. Just as no two people will ever have the exact same journey through life, navigating probate will look different from estate to estate, based on the unique circumstances of the decedent — including the type and complexity of the assets they are leaving behind; the quality of their estate planning; the willingness and capability of their executor of the will, trustee, and other fiduciaries; and the likelihood of contests or disputes cropping up. All of these factors can influence the amount of time that probate will take in Illinois — or even whether probate is going to be required in the first place.
How Long Can Probate Take in Illinois?
Probate refers to the legal process for administering someone’s estate after they have died. The goal of probate is to manage the distribution of the deceased person’s estate to their designated heirs and their chosen beneficiaries, while also resolving any debts owed to creditors.
As a rule of thumb, when probate is required for a decedent’s estate, you can expect the administration to last for at least six months; in Illinois, this is the length of the claim period, during which creditors have a right to file a claim against the estate. Generally speaking, distribution of assets and the closing of the estate will not occur until after this window of time. As a result, the “typical” probate process will take roughly six to twelve months — though it could stretch on for much longer if there are disputes, unanticipated issues, or other factors that must be resolved.
In broad strokes, the probate process typically involves:
- Gathering the decedent’s personal information. In order to successfully administer a decedent’s estate, you must first gather as much accurate information as possible about the decedent’s assets, liabilities, and legal obligations, including their will, any trust documents, funeral arrangements and burial plans, business interests, and relevant personal information (e.g., marriage and divorce decrees, adoption decrees, etc.).
- Filing the will. If the decedent had a will, then the original will need to be filed with the clerk of the circuit court where the decedent resided at the time of death. This must be done within 30 days of the person learning of the decedent’s death, regardless of whether a probate estate will be opened in court. If there is a will, this is called a testate estate. If there was no will and the case must be opened in probate, then it is an intestate estate.
- Appointing a personal representative. The decedent may have named an executor or personal representative in their will; if not, one will be appointed by the court. The executor is the person with the responsibility of guiding the estate through the probate process, including ensuring that debts and liabilities are paid or resolved and that the decedent’s assets are distributed in accordance with their wishes.
- Taking inventory and providing an accounting. There are three types of accountings that may be required in the course of probate administration: (1) inventory, (2) current account or a series of current accounts, and (3) a final account to itemize the distribution of the estate assets. The representative may be required to prepare, file, and serve upon interested parties an inventory of the decedent’s Illinois real estate, all personal property, and any cause of action on which the estate has a right to sue. Similarly, the representative may be required to prepare, file, mail, deliver, and/or publish a final account to all interested persons.
- Distribution of estate assets. Once all court formalities have been satisfied, and the debts and liabilities (including claims, taxes, attorney fees, and executor reimbursements and fees) have been paid or resolved, the Court will be ready to allow distribution of assets. The executor has a duty to deliver specifically bequeathed or devised property to the beneficiaries. Items that were not specifically bequeathed or devised to a specific beneficiary are part of the residuary estate that will be distributed per the terms of the will or per the law.
As noted above, this process will not always play out in the same way. The amount of time required to fully complete probate could be longer or shorter, based on the unique specifics of the decedent’s estate.
Let’s explore some of the factors that can influence the length of probate and estate administration in Illinois in a bit more depth:
Did the decedent create an effective estate plan?
One of the most important determining factors for determining the length of the probate process is the amount and quality of the estate planning that the decedent performed during their lifetime. Estate planning is the process of making arrangements during your life for what will happen to your estate when you become incapacitated or die. This can mean everything from planning ahead for your burial, to making arrangements for the guardianship and care of your minor children, to distributing your assets to your friends and family — including your home, vehicle, investments, savings accounts, and personal possessions.
Estate planning is a powerful way to make sure that your wishes are carried out, while making this difficult transition much easier for your loved ones. In contrast, not having a comprehensive estate plan in place may force your family and friends to face lots of confusion, costly fees, and extensive legal battles — making an already time-intensive process stretch on even longer.
Creating an estate plan can streamline and expedite probate, and may allow many of your most important assets to bypass the process altogether. Broadly speaking, assets will be able to bypass probate if they fall into one of these major categories:
- Assets placed in a revocable living trust. Revocable living trusts are a common mechanism in estate planning because they can allow many valuable assets to be handled outside of probate, from real estate to financial accounts to personal property. This can allow your loved ones to gain access to their inheritance more quickly, and keep private matters out of the public eye. Trusts can also give you a level of control over your assets, even after you’re gone. As an example, you can use a trust to determine when a beneficiary may be able to access his or her inheritance, or leave special provisions for the care of a minor or disabled adult.
- Property owned as joint tenants with rights of survivorship or as tenants by the entirety. With joint tenancy with rights of survivorship, two or more people each hold an equal interest in a property. This type of co-ownership grants the surviving owner the right to automatically inherit the decedent’s share, which allows the property to be transferred outside of probate. Tenancy by the entirety is a special form of ownership reserved for married couples in Illinois. It can only be used for real estate. This arrangement confers rights of survivorship to the surviving spouse, and can offer some protections from creditors.
- Assets and accounts with Payable-on-Death (POD) or Transfer-on-Death (TOD) designations. With a payable-on-death (POD) designation on an account or policy, the decedent’s chosen beneficiary can claim the money directly from the financial institution, without the need to go through the probate court. A transfer-on-death (TOD) designation allows the decedent to name a beneficiary who will assume ownership of the asset upon his or her death. While this is most commonly associated with stocks, bonds, and brokerage accounts, Illinois residents can also use the transfer-on-death instrument for real estate and vehicles, in certain circumstances.
Bottom line? By planning ahead for probate and making a plan for your most important assets, you can help secure your family’s future, saving them time, money, and stress when it comes to the complex legal process of probate. Planning ahead can also help keep peace within your family, minimizing the risk for strife and arguments developing over time. The less room that you leave for disputes or contests, the quicker and smoother the process can be for all parties involved.
Is the decedent’s estate particularly large or complex?
There are many moving pieces involved in administering a decedent’s estate in Illinois, which can make the probate process unique from individual to individual— and affect the amount of time it takes to successfully complete the process.
For instance, how many assets will the executor be responsible for collecting and inventorying? Will they need to bring on professionals to appraise the value of different items? How much of the decedent’s property will need to be handled as part of the residuary estate, or without clear directions for its disposition? Does the decedent’s estate contain complicated assets, such as property owned in a different state or even a different country? As a rule of thumb, the more complex the assets and holdings left by the decedent, the longer probate is likely to take.
How many claims must be resolved, and how complex will they be to deal with? Handling claims against an estate can be difficult and time-consuming, particularly if there are many different claims that must be addressed.
How many beneficiaries and legatees are involved in the estate? Will there need to be a discovery of heirs? On a practical level, having to deal with more parties will often mean more time for the personal representative — filing the proper notices, managing communications and meetings, and arranging distributions.
The size and complexity of the estate will also determine whether or not probate is necessary— and, if so, what type of administration might be required.
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 form of summary administration may apply to your situation.
When probate is required, administration may be independent or supervised. 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.
How effective are the executor, trustees, and other fiduciaries acting on behalf of the estate?
The personal representative of the estate, also known as the “executor of the will,” is the person whom the decedent chose to carry out their wishes. The personal representative will be required to fulfill a number of incredibly important duties throughout estate administration, from collecting and inventorying the decedent’s assets, to resolving claims against the estate, to ultimately making distributions and closing the estate.
Similarly, there may be other fiduciaries acting on behalf of the decedent during this period, including a trustee — that is, the person or group responsible for administering a trust and managing its contents.
If the decedent did not appoint an executor in their will, or failed to leave a will, a personal representative will have to be appointed. Similarly, the Court may have to appoint a personal representative if the person named in the decedent’s is not willing or able to act, or if the court deems the named person to not be the best person to serve. If a personal representative needs to be appointed, this can cause probate to drag on for a longer period of time.
What’s more, if a personal representative, trustee, or other fiduciary is not responsible about filing the necessary paperwork, maintaining lines of communication, and achieving their responsibilities by the required deadlines, this could cause the administration process to become prolonged. Eventually, litigation may be required to replace the personal representative or trustee, or to compel them to take action.
Choosing the right individual or group to act on your behalf is an incredibly important element of the estate planning process. It is important to select representatives and trustees who will be capable of fulfilling their duties in a timely and expedient manner in order to resolve issues as they come up and keep the process moving forward. The more efficient and competent these fiduciaries are, the more efficient probate is likely to be.
Are there any contests or disputes?
Contests against wills, trusts, and beneficiary designations can all significantly extend the amount of time it takes to complete probate administration, while also making the process more complex and emotionally fraught.
Legal challenges over the validity of a will or trust, the appointment of a guardian, or the actions of a fiduciary can drag on for months, if not years, significantly delaying the completion of probate — and making this transition difficult for all involved. It is also worth noting that in addition to extending the amount of time required for probate, such matters can also become a financial drain on the estate and the various interested parties participating in the proceedings.
You can learn more about Illinois will contests — including the standing required and the legal grounds that can be used to contest the validity of a will — by clicking here.
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.