Illinois Petition for Probate

Introduction

Key Things to Know

1. 1

   A judge of the Circuit Court of the proper county admits the will and issues letters, on a petition to admit the will to probate and for letters testamentary, filed with the clerk of the circuit court (755 ILCS 5/6-2). With no will, the petition is for letters of administration. County clerks publish their own petition forms, and the court's form controls over any draft.

2. 2

   No one has authority over estate assets until the court appoints them and letters issue. A named executor must still petition and be appointed, and should not distribute assets, pay heirs or sell property before appointment or before the creditor period ends.

3. 3

   Immediately upon the death, any person holding the will must file it with the clerk of the circuit court, and the court may compel delivery. A named executor must, within 30 days after learning of the nomination, either start a proceeding to admit the will or declare a refusal to act (755 ILCS 5/6-1, 6-3). If 30 days have passed since the death and no petition has been filed, the court may proceed to probate the will without a petition.

4. 4

   The executor named in the will has first priority for appointment if qualified: at least 18, a US resident, not of unsound mind or an adjudged disabled person, not currently incarcerated, and without a felony conviction unless the will names them with express acknowledgment. With no will or no executor, the order is the surviving spouse or their nominee, legatees (children preferred), children, grandchildren, parents, siblings, nearest kindred, the representative of a deceased ward's estate, the Public Administrator and a creditor (755 ILCS 5/6-13, 9-3). A nonresident of Illinois may serve if a US resident, and the court may require a bond despite the will.

5. 5

   Notice to heirs and legatees comes after the order. Within 14 days after the order admitting the will or appointing the representative, a copy of the petition and the order is mailed to each heir and legatee named in the petition, with publication for those not listed (755 ILCS 5/6-10). Creditors get notice by publication once a week for 3 successive weeks plus mailed or delivered notice to known or reasonably ascertainable creditors, with a claim date not less than 6 months from first publication or 3 months from mailing or delivery, whichever is later (755 ILCS 5/18-3).

6. 6

   Every individual representative must take an oath and file a court-approved bond before acting. The will can excuse bond, unless the court suspects fraud or incompetence or thinks the estate insufficient for claims, and a nonresident executor can still be bonded. Bonds are not required of corporations qualified to administer trusts in Illinois (755 ILCS 5/12-1, 12-2, 12-4). Illinois makes independent administration the court's default unless the will forbids it or supervised administration is required (755 ILCS 5/28-2).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and Illinois has a small estate affidavit route that involves no court case. See our small estate affidavit page for that route.

Illinois Requirements for Petition for Probate

• Circuit Court Admits the Will and Issues Letters

  A judge of the Circuit Court of the proper county admits the will and issues letters on a petition filed with the clerk of the circuit court (755 ILCS 5/6-2). Ask the clerk which county is proper and which petition form it requires; the court's form controls.

• Petition to Admit Will and for Letters

  One petition can seek admission of the will and issuance of letters. It states the decedent's residence, date and place of death, the date of the will, the estate value, the names and addresses of all heirs and legatees, and the proposed executor (755 ILCS 5/6-2). With no will, the petition is for letters of administration.

• Will Custodian and 30-Day Executor Duty

  Immediately upon the death, any person holding the will must file it with the clerk of the circuit court. A named executor must, within 30 days after learning of the nomination, either start a proceeding to admit the will or declare a refusal to act (755 ILCS 5/6-1, 6-3).

• Priority and Qualification to Serve

  The named executor has first priority for appointment if qualified (at least 18, a US resident, not of unsound mind or an adjudged disabled person, not currently incarcerated, and without a felony conviction unless the will names them with express acknowledgment). Otherwise the order runs from the surviving spouse or their nominee through legatees, children, grandchildren, parents, siblings and nearest kindred, the representative of a deceased ward's estate, the Public Administrator and a creditor. A nonresident US resident may serve, and the court may require a bond (755 ILCS 5/6-13, 9-3).

• Notice to Heirs and Legatees After the Order

  Within 14 days after the order admitting the will or appointing the representative, a copy of the petition and the order is mailed to each heir and legatee named in the petition, with publication once a week for 3 successive weeks for those not listed (755 ILCS 5/6-10).

• Creditor Notice and Claims Period

  The representative publishes notice once a week for 3 successive weeks and mails or delivers notice to known or reasonably ascertainable creditors. The claim date is not less than 6 months from first publication or 3 months from mailing or delivery, whichever is later (755 ILCS 5/18-3).

• Oath and Bond

  Every individual representative takes an oath and files a court-approved bond before acting. The will can excuse bond unless the court suspects fraud or incompetence or thinks the estate insufficient for claims. A nonresident executor can still be bonded. Bonds are not required of corporations qualified to administer trusts in Illinois (755 ILCS 5/12-1, 12-2, 12-4).

• Independent Administration by Default

  Unless the will expressly forbids it or supervised administration is required, the court grants independent administration, which lets the representative administer the estate without court order or filings (755 ILCS 5/28-1, 28-2).