Steps in the probate process

What happens during a decedent's probate proceeding? As mentioned above, a decedent's probate proceeding is really a proceeding to determine who is entitled to receive the assets left by a decedent that were held in the decedent's name alone.

1. Determination of heirship. The first thing that must be done is for the court to determine who the decedent's lawful heirs are. The determination of a decedent's heirship (in other words, who the decedent's heirs are) is done in every decedent's estate, whether the decedent died with a will or without a will. The term "heirs" means the persons that would inherit the assets of the decedent if the decedent did not have a will. The determination is made pursuant to Section 5/2-1 of the Illinois Probate Act which sets forth who are the lawful heirs, depending on the family situation of a decedent at the time of his or her death. Section 5/2-1 of the Illinois Probate Act is titled "Rules of descent and distribution", meaning that it sets forth who is to receive a decedent's property and in what percentages, with respect to decedent's who die without wills. For instance, if a person dies leaving a spouse and two children, the spouse and the two children are the lawful heirs and if the decedent died without a will, the spouse will receive one-half of the decedent's probate assets and his children will split the other half. See Section 5/2-1 for more details on the rules of descent and distribution.
2. Admission of will, if applicable. The second thing that must be done is for the court to determine if the decedent left any will, and if so, does that will comply with the execution requirements under the Illinois Probate Act to be a valid will. Under Section 5/6-1 of the Illinois Probate Act, it is the duty of any person who comes into possession of a will of a decedent to file that will with the Clerk of the Circuit Court in the county within which the decedent resided at the time of his or her death. The will is required to be so filed within thirty days of the death of the decedent. Any person that alters, destroys or hides a decedent's will commits a Class 3 felony under Section 5/6-1, and may be criminally charged.

   As a practical matter, usually the person that files the initial petition seeking to open up the probate estate has already searched for a will and made a determination that the decedent did or did not have one. Whether or not the decedent is believed to have a will is reflected in the initial petition filed to open the probate estate.

   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, the judge looks only at the four corners of the instrument and does not consider any extrinsic evidence (i.e. the court can not, and will not, at this initial hearing consider whether or not the signature on the will is a forgery, or if the decedent was coerced to sign the will). At the initial hearing 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 are:

   1. that the will be in writing, and
   2. signed by the decedent, and
   3. 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 that minimal threshold is met, the will is "admitted to probate."

3. Appointment of estate representative. The representative the court appoints to manage the estate is called the "administrator" if the decedent left no valid will, or the "executor" if the decedent did leave a valid will. The executor or administrator are sometimes generically referred to as the estate representative. If the decedent died with a will, and if the person named in the will to act as the executor is living, able and willing to act as executor, then the court will, in the absence of any objection, appoint that person the executor.

   In an estate where the decedent left no valid will, the Illinois Probate Act provides an order of preference as to who is entitled to nominate who will be the administrator. Section 5/9-3 sets forth the order of preference. Generally, the order of preference mirrors the degree of relationship to a decedent. For instance, a spouse has preference over all others, children have preference over the decedent's siblings, etc. In exercising their right to nominate, people often nominate themselves as the administrator. Only people over the age of 18, who reside in the United States, who are of sound mind and have not been convicted of a felony may act as, or nominate someone to act as, administrator

   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.

4. Overview of duties of the executor or administrator. Once appointed, the executor or administrator performs the following tasks:
   • Publishing a notice in a local newspaper 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 six months of the appointment of the executor or administrator. Assuming the proper notice was given to a creditor, should any claimant fail to file their claim during the six month time period, that claim will be forever barred.
   • 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 six months from the date of the appointment of the executor to challenge and contest any will. Failing to do so in a timely way means that the will can not be thereafter challenged.
   • 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 six month claim period. Options in dealing with claims include paying the claim in full, compromising or settling the claim, or denying the claim in full and thereby forcing the claimant to prove their claim via a trial in front of the judge who will then decide if the claim has merit.
   • 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.