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Table of Contents
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List of Forms by Chapter - Chapter 1 — Probate Fundamentals and Terminology
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I. [1.1] Introduction - II. [1.5] Glossary of Terms
- III. [1.6] What Is “Probate”?
- IV. [1.7] What Does It Mean To Open Probate?
- V. [1.8] Who Are the Persons Involved?
- VI. [1.9] Complaints About Probate
- VII. [1.10] Benefits of Probate
- VIII. [1.11] What Is an “Estate”?
- IX. [1.12] Estate Representative and Letters of Office and Administration
- X. [1.13] Court Proceedings
- XI. [1.14] How Long Will Probate Take?
- XII. [1.17] How Much Will Probate Cost?
- XIII. The Place of Probate
- XIV. Common Probate Myths
- [1.20] A Last Will Avoids Probate
- [1.21] The Reading of the Last Will
- [1.22] The Named Executor Has Authority Over Estate Assets and Debts Before Court Appointment
- [1.23] A Beneficiary’s Spouse Is Entitled To Inherit in Probate
- [1.24] The Person Named as First Choice Executor Is Executor de Facto
- [1.25] The Estate Representative or the Decedent’s Family Can Do What the Decedent “Really Wanted”
- XV. [1.26] Testate vs. Intestate Estates
- XVI. [1.34] Supervised vs. Independent Administration
- XVII. [1.37] Conflicts Between Provisions of the Probate Act
- XVIII. [1.38] How Beneficiaries Are Notified
- XIX. [1.39] Last Wills Are Public Records
- XX. [1.40] Determining Whether the Decedent’s Estate Must Go To Probate
- XXI. [1.41] Persons Who Can Act as Representative of the Estate
- XXII. [1.49] Letters of Office
- XXIII. Per Stirpes vs. Per Capita
- XXIV. [1.54] Dos and Don’ts
- XXV. [1.55] Navigating the Probate Act
- Chapter 2 — Which Assets Are Governed by Probate
- I. [2.1] Introduction
- II. How Is Each Asset Owned (Titled)?
- III. [2.4] Categorizing the Decedent’s Assets and Disposition of Assets
- IV. [2.5] Disposition of Assets After the Decedent’s Death
- Track One: Trust Assets Are Governed by Trust Administration
- [2.6] Living or Testamentary Trusts
- [2.7] Grantor’s Death
- [2.8] Surviving Cotrustee or Acting Successor Trustee Has Authority
- Land Trusts
- [2.9] What Is a Land Trust?
- [2.10] Transfer on Death/Probate Avoidance
- [2.11] Key Elements of a Land Trust
- [2.12] Track Two: Estate Assets May Be Subject to the Decedent’s Estate Administration (Probate)
- [2.13] Track Three: Assets Passing by Operation of Law (Outside of the Estate/Probate)
- [2.14] Tenants in Common
- [2.15] What Is Joint Tenancy?
- [2.16] Personal property
- [2.17] Real estate
- [2.18] The four unities of joint tenancy
- [2.19] Tenants by the Entirety (Real Estate)
- [2.20] Bank Accounts: When a (Nominal) Joint Tenant Was Added Who Furnished Little to No Consideration
- [2.21] Authorized signers vs. join owners
- [2.22] Convenience accounts
- [2.23] Disputes about joint tenancy with rights of survivorship vs. convenience accounts
- [2.24] Third-Party Beneficiary Contract Act
- [2.25] Uniform Transfer on Death Security Registration Act
- Real Property Transfer on Death Instrument Act
- [2.26] What is a transfer-on-death instrument?
- [2.27] When is a transfer-on-death instrument effective?
- [2.28] How is a transfer-on-death instrument revoked?
- [2.29] Is the transfer-on-death instrument valid?
- [2.30] When is a transfer-on-death instrument void?
- [2.31] Transfer-on-death instrument beneficiaries
- [2.32] What must be done after the owner’s death
- [2.33] Track Four: Disposition of Assets Pursuant to Governing Documents or Statutes or Divestiture of Inheritance by Statute
- [2.34] Track Five: Probate Alternatives (After the Decedent’s Death)
- Chapter 3 — Meeting with the Petitioner
- I. Managing Client Expectations
- II. [3.4] Due Diligence Before Opening Probate
- III. Initial Meeting with a Potential Client
- IV. [3.12] Gathering Information
- V. [3.13] Safekeeping Property on Behalf of the Estate
- VI. [3.14] Attorney Competency Requirements
- VII. [3.15] Verifying Information and Avoiding Sanctions
- VIII. [3.16] Retainer Letter
- IX. Competency and Attorneys’ Fees
- X. [3.20] Engaging Legal Counsel for Certain Aspects of Probate
- XI. [3.21] What Funds Can Be Used To Open Probate?
- XII. [3.22] Managing Client Communication
- XIII. [3.23] Should Probate Be Opened?
- XIV. [3.24] Considerations Before Filing the Petition
- XV. [3.27] What Can the Petitioner Do Before Letters of Office Are Issued?
- XVI. [3.28] Immediate Court Appointment by Petitioning for Letters of Administration To Collect
- XVII. [3.29] Opening Probate Dos and Don’ts for Attorneys
- Chapter 4 — Alternatives to Probate (and Assessing Whether or Not To Probate)
- I. [4.1] Small Estate Affidavit for Personal Property
- [4.2] Purpose of Small Estate Affidavits
- [4.3] Assets Governed by Small Estate Affidavits
- [4.4] 2025 Amendment to 755 ILCS 5/25-1 by P.A. 104-346 (eff. Aug. 15, 2025)
- [4.5] Valuing Assets
- [4.6] When Can a Small Estate Affidavit Not Be Used?
- [4.7] When Should a Small Estate Affidavit Be Signed?
- [4.8] Heirs in the Small Estate Affidavit
- [4.9] Supporting Documents of a Small Estate Affidavit
- [4.10] Bequeathing Specific Personal Property to Specific Legatees
- [4.11] Drafting the Small Estate Affidavit
- [4.12] Presenting the Small Estate Affidavit
- [4.13] Disclosure of Estate Claimants
- [4.14] Distribution of Assets
- [4.15] Pushback when Presenting the Small Estate Affidavit
- [4.16] Risks of Signing a Small Estate Affidavit
- [4.17] Penalties for False Statements
- [4.18] Nonresident Affiant
- [4.19] Indemnification
- [4.20] Potential Disputes and Conflict
- II. [4.21] Bond in Lieu of Probate for Real Property
- III. Insolvent or Small Estates: To Probate or Not To Probate?
- Chapter 5 — Anatomical Gifts and Disposition of Remains
- I. [5.1] Introduction
- II. [5.2] Illinois Power of Attorney Act
- III. [5.3] Anatomical Gifts
- Instruments That Authorize Anatomical Gifts
- [5.4] Power of Attorney for Healthcare
- [5.5] Other Instruments Listed in the Illinois Anatomical Gift Act
- [5.6] When a Will Is Not Admitted to Probate or Is Proved Invalid
- [5.7] Anatomical Gifts and Donation of Body for Medical Research and Education
- [5.8] Who Has Authority To Make Anatomical Gifts on Behalf of a Decedent?
- [5.9] In the Absence of Actual Notice of Contrary Intentions Given by the Decedent
- Illinois Secretary of State
- [5.10] Organ Donation and First-Person Consent Organ/Tissue Donor Registry
- [5.11] Revoked or Suspended Driver’s License
- IV. Disposition of Remains Act
- [5.12] Disposition of Remains
- Instruments Governing Disposition of Remains
- [5.13] Written Directions by the Decedent
- [5.14] A Written Instrument Pursuant to the Disposition of Remains Act
- [5.15] Directions That Can Be Included
- [5.16] When There Is No Written Instrument
- [5.17] Disqualifications To Act as Agent
- [5.18] The Right To Control Disposition
- [5.19] Prohibition of Cremation
- [5.20] Is Probate of a Will Required To Fulfill Disposition of Remains Instructions?
- [5.21] Disputes Under the Disposition of Remains Act
- Chapter 6 — Anatomy of a Will — Filing and Admitting a Will to Probate
- I. [6.1] Wills or the Probate Act — Which Prevails?
- II. [6.2] Express Statements in the Will
- III. What a Will Must Contain
- [6.7] Essential and Optional Clauses in a Will
- [6.8] Criteria for a Valid Will in Illinois
- [6.9] The Will Must Be in Writing
- [6.10] Requirements for Mental Capacity of the Testator
- [6.11] Requirements for Signing and Attestation of the Will
- [6.12] Establishing Witness Statements
- [6.13] Witnesses Attestation
- IV. [6.14] Reviewing the Will
- V. Executors of the Estate
- VI. [6.23] Disposition of Assets
- [6.24] Legacies and Bequests
- [6.25] Specific Bequests and Legacies
- [6.26] General Bequests
- [6.27] Demonstrative Bequest
- [6.28] Conditional Bequests and Legacies
- [6.29] Conditions Precedent vs. Conditions Subsequent
- [6.30] Conditions That Violate Public Policy
- [6.31] Invalid Conditions
- [6.32] Timing of Vesting
- [6.33] The Vesting of Legacies Under a Will
- [6.34] Examples of Testamentary Provisions
- [6.35] Residuary Clause
- [6.36] Testamentary Trusts
- [6.37] Contracts, Court Orders, and Statutes That Override the Will’s Disposition
- [6.38] Loans Given During the Testator’s Lifetime
- [6.39] Disinheritance Clause
- [6.40] No-Contest Clause (a.k.a. In Terrorem Clause)
- [6.41] Lapsed Legacy
- Antilapse Statute
- [6.42] Purpose of the Antilapse Statute
- [6.43] To Whom Does the Antilapse Statute Apply?
- [6.44] Lack of a Residuary Clause
- [6.45] The Will Controls
- [6.46] Failed Legacy vs. Lapsed Legacy’
- [6.47] Survivorship
- When a Legatee Survives the Testator but Dies Thereafter
- [6.48] Post-Deceased Legatee Dies After the Interest Vests
- [6.49] Post-Deceased Legatee Dies Before the Interest Vests
- Vesting of Estates
- [6.50] Vesting of Estate Interests vs. Transfer of Estate Interests
- [6.51] Failure To Admit the Will to Probate Does Not Prevent Vesting
- [6.52] Admitting the Will to Probate Effectuates Transfer of Legacies and Relates Back to the Moment of Death
- [6.53] Ademption
- [6.54] Ademption Applies to Specific Legacies, not Demonstrative Legacies
- [6.55] How Ademption Occurs
- [6.56] Intent To Revoke the Bequest
- VII. Locating the Will or Codicil
- [6.57] Electronic or Digital Wills and Codicils
- [6.58] Non-Electronic Wills and Codicils
- [6.59] Safe-Deposit Boxes
- [6.60] Will in Possession of the Drafting Attorney or Firm
- Will Depositories
- [6.61] Illinois Will Depository for the General Public
- [6.62] Illinois Secretary of State Deposit of Wills for Attorneys Only
- VIII. Revocation of Wills
- IX. Alterations to a Will
- X. Filing and Admitting a Will to Probate
- [6.67] Electronic Wills
- [6.68] Filing vs. Admitting Wills and Codicils
- [6.69] Filing Wills and Codicils
- [6.70] Original Will vs. Copy
- [6.71] Filing a Copy of the Will or Codicil
- [6.72] Who Must File
- [6.73] When a Will or Codicil Must Be Filed
- [6.74] How and Where To File the Will
- When a Will Is Filed in the Wrong Location
- [6.75] In General
- [6.76] Petition To Admit the Will to Probate
- [6.77] Petitioning To Admit the Will in Conjunction with Opening Probate
- [6.78] Will the Court Admit the Will to Probate?
- [6.79] Is There a Deadline To Petition To Admit the Will?
- [6.80] Petitioning To Admit a Copy of a Will to Probate
- XI. [6.81] Wills Executed Outside of Illinois
- Chapter 7 — Electronic and Other Nontraditional Wills
- I. [7.1] Introduction
- II. [7.2] Types of Nontraditional Wills Covered by the Electronic Wills Act
- III. [7.6] Admitting Wills Signed Under the COVID-19 Emergency Procedures
- IV. [7.7] Admitting Wills Signed with Ink Signatures and Attested to Using the Permanent Process for Remotely Witnessing Wills
- V. [7.8] Electronic Wills
- VI. [7.11] Paper Copies of Electronic Wills
- VII. Special Issues when Probating Nontraditional Wills
- Chapter 8 — Identifying Heirs, Legatees, and Who Is Entitled To Inherit
- I. [8.1] Introduction
- II. [8.2] Per Stirpes vs. Per Capita
- III. Heirs
- IV. [8.9] Survivorship
- V. Identifying Legatees and Devisees
- [8.13] Legatee vs. Devisee
- [8.14] The Probate Act’s Definition of “Legatee”
- [8.15] The Definition of “Family” in the Will
- [8.16] Vested Present or Future Interest
- [8.17] Contingent Legatees
- [8.18] Living Testator
- [8.19] Survivorship in Relation to Legatees
- [8.20] Pour-Over Wills: The Residuary Legatee Is a Trustee of a Trust
- [8.21] Authority Over the Trust
- [8.22] Signing the Probate Pleadings
- [8.23] Identity of Trust Beneficiaries Is Not Disclosed in Probate
- VI. [8.24] Prohibited, Decreased, or Void Transfers
- VII. [8.28] Persons Not Entitled To Inherit
- VIII. Identifying Heirs
- IX. [8.38] Identifying Descendants
- X. Parents, Siblings, and Collateral Heirs
- XI. Unknown Heirs
- XII. [8.50] Change in Distributive Rights: Disclaimers, Renunciation, or Death of a Distributee
- Chapter 9 — Minors and Disabled Persons as Heirs or Legatees
- I. [9.1] Introduction
- II. [9.2] Key Terms
- III. Estate Issues for Wards
- IV. [9.7] Guardianship Proceedings
- [9.8] Minors
- Review of Applicable Forms
- [9.9] Petition for Guardian of Minor, Notice/Service, Waiver, and Consent
- [9.10] Oath and Bond of Representative — Surety or No Surety
- [9.11] Initial Hearing
- Additional Proceedings During the Pendency of the Case
- [9.12] Inventory
- [9.13] Accounting
- [9.14] Annual Reports
- [9.15] Closing the Minor’s Estate
- [9.16] Adults with Disabilities
- Review of Applicable Form
- [9.17] Physician’s Report
- [9.18] Petition for Appointment of Guardian, Notice/Service, Waiver, and Consent
- [9.19] Oath and Bond of Representative — Surety or No Surety
- [9.20] Initial Hearing
- Additional Proceedings During the Pendency of the Case
- [9.21] Inventory
- [9.22] Accounting
- [9.23] Estate Planning
- [9.24] Guardian Training
- [9.25] Annual Reports
- [9.26] Closing the Estate of an Adult with a Disability
- V. [9.27] The Role of a Guardian ad Litem
- Chapter 10 — Disclaimers
- I. [10.1] Disclaimers in Probate
- II. [10.2] Who May Disclaim
- III. [10.3] Property That Can Be Disclaimed
- IV. [10.4] Who Is Entitled To Receive the Disclaimed Property?
- V. [10.5] Elements of a Valid Disclaimer
- VI. [10.6] Elements of a Qualified Disclaimer
- VII. [10.7] Is There a Deadline To Disclaim?
- VIII. [10.8] Risks of Disclaiming
- IX. [10.9] Separate Counsel for Disclaimant
- X. [10.10] Disclaiming on Behalf of the Decedent
- XI. [10.11] Probate Need Not Be Opened To Disclaim
- XII. [10.12] Notifying the Court of a Disclaimer
- Chapter 11 — Opening Probate
- I. [11.1] Introduction
- II. [11.2] Set Up the Case File
- III. [11.6] Civil Procedure Applies in Probate
- IV. Where To Open Probate
- [11.7] The Place of Probate
- [11.8] In Which Illinois County Should Probate Be Opened?
- Probate in More than a Single State
- [11.9] Domiciliary vs. Ancillary Probate
- [11.10] Domiciliary Probate
- [11.11] Domicile in Illinois
- [11.12] Illinois Jurisdiction as Domiciliary
- [11.13] Non-Domiciliary State May Have Jurisdiction for Original Probate of Will
- [11.14] Probate of Real Estate Is Governed by Situs
- [11.15] When the Decedent Owns Real Estate in More than One State
- [11.16] Intestacy Laws May Vary by State
- V. Opening Probate Out of State
- VI. [11.19] Cook County Is More Nuanced
- VII. [11.20] How To Open Probate
- VIII. Filing Pleadings To Open Probate
- IX. Scheduling a Court Hearing
- X. [11.28] Must the Petitioner or Representative Appear at the Hearing?
- XI. Immediate Court Appointment by Petitioning for Letters of Administration To Collect
- XII. In-Person or Videoconference Hearings?
- XIII. [11.34] Circuit Court of Cook County
- [11.35] In-Person Hearings
- [11.36] Requesting a Remote Court Appearance
- [11.37] Hearing by Videoconference
- [11.38] Notice of Motion for Hearings by Videoconference
- [11.39] General Administrative Orders and Standing Orders
- [11.40] Court Portal
- [11.41] Obtaining Orders
- [11.42] Courtesy Copies
- [11.43] Cook County
- [11.44] Mailing or Emailing Courtesy Copies
- [11.45] Finding Judges’ Email Addresses
- [11.46] Drafting Courtesy Copies Emails
- XIV. [11.47] DuPage County (18th Judicial Circuit Court)
- XV. [11.53] Must the Petitioner’s Attorney File an Appearance?
- XVI. [11.54] Pleadings Required for Testate Proceedings
- XVII. [11.61] Unknown Heirs in Testate Estates
- [11.62] Before the Hearing
- [11.63] Cook County State’s Attorney (or the State’s Attorneys in Other Counties)
- [11.64] When the Deadline To Notify the State’s Attorney Is Missed
- Oath and Bond of Representative — Surety or No Surety
- [11.65] In General
- [11.66] In Cook County
- [11.67] Affidavit of Copy of Will
- [11.68] Order Admitting Will to Probate and Appointing Representative
- XVIII. [11.69] Statutory Notice After the Hearing — Testate Estates
- [11.70] Publishing
- [11.71] Content of Notice
- [11.72] Exceptions to Mailing and Publishing Notice
- [11.73] Waiver of Notice
- [11.74] Why Obtain a Waiver of Notice in Lieu of Giving Notice?
- [11.75] Must the Petitioner or Estate Representative Sign a Waiver of Notice?
- [11.76] Deadline To Sign the Waiver of Notice
- [11.77] Waiver of Notice Court Forms
- XIX. [11.78] Pleadings Required in Intestate Proceedings
- [11.79] Before Filing the Petition
- Persons Entitled to Preference To Serve as or Nominate an Estate Administrator
- [11.80] Hierarchy of Persons Who May Serve as or Nominate an Administrator
- [11.81] Persons Entitled to Preference in Serving as or Nominating an Administrator
- [11.82] Qualifications To Serve as or Nominate an Estate Administrator
- [11.83] Qualifications To Serve as Administrator in an Intestate Matter
- [11.84] When Multiple Persons Are Equally Entitled To Act as or Nominate an Administrator
- XX. [11.85] Petition for Letters of Administration — Intestate Estates
- XXI. [11.88] Oath and Bond of Representative — Surety
- XXII. [11.89] Notifying Persons Entitled to Preference — Intestate Estates (and Letters of Administration with the Will Annexed)
- [11.90] Must Notice Be Sent to an Individual Entitled to Preference Who Does Not Qualify?
- [11.91] Petition for Letters of Administration with the Will Annexed
- [11.92] When “Everyone Agrees” That the Petitioner Should Serve
- [11.93] Waiver of Notice (Also Known as Appearance and Consent)
- [11.94] No Deadline To Sign the Waiver of Notice
- [11.95] Preprinted Court Forms
- XXIII. [11.96] E-Filing the Petition for Letters of Administration — Intestate Estates
- XXIV. [11.97] Unknown Heirs in Intestate Estates
- XXV. [11.98] Order Appointing Representative of Decedent’s Estate — Intestate Estates
- XXVI. Pleadings in Both Testate and Intestate Proceedings
- XXVII. [11.101] Designation and Acceptance of a Personal Fiduciary for a Person with a Disability or a Minor
- XXVIII. [11.107] Affidavit of Heirship
- [11.108] Determining the Heirs of the Decedent in Probate
- [11.109] Proving Heirship
- Drafting the Affidavit of Heirship
- [11.110] Specific Circuit Court’s Pleadings
- [11.111] Narrative Format
- [11.112] Formula To Draft a Narrative Affidavit of Heirship in Cook County
- [11.113] Common Mistakes When Drafting a Narrative Affidavit of Heirship
- [11.114] Opening Statements in the Affidavit of Heirship
- [11.115] Discerning Heirship
- [11.116] When the Will Disinherits an Heir
- [11.117] Death of an Heir
- [11.118] Who Is an Heir vs. Who Has the Right To Inherit
- [11.119] The Branches of the Family Tree
- Unknown Heirs
- [11.120] No Known Heirs
- [11.121] Naming Unknown Heirs in an Affidavit of Heirship
- [11.122] Check the Local County Court Rules
- [11.123] Newly Discovered Heirs or Omitted Heirs
- [11.124] Former Spouse
- [11.125] Separated and/or in Divorce Proceedings, But Not Yet Divorced
- [11.126] Marital Status
- [11.127] When the Decedent’s Former Spouse Remarries
- [11.128] Descendants — Extending “Down” the Family Tree
- [11.129] Spouses of the Decedent’s Children
- [11.130] Order Declaring Heirship
- XXIX. Nonresident Representative
- [11.131] Designation of Resident Agent Pleading
- [11.132] Removal of Property
- [11.133] Leave of Court To Remove Estate Property from Illinois
- [11.134] Compliance with the Removal of Property Statute
- [11.135] Opening an Estate Bank Account or Liquidating a Decedent’s Bank Account
- [11.136] Amending the Petition
- [11.137] Amended Petition for Omitted Heir or Legatee
- [11.138] Formal Proof of Will
- XXX. [11.139] Surety Bonds
- [11.140] What Is a Probate Surety Bond?
- [11.141] How Much Is the Bond?
- [11.142] Whom a Bond Protects
- [11.143] Who Obtains the Bond
- [11.144] Two or More Estate Representatives
- [11.145] When a Bond Is Required
- [11.146] When the Will Waives Surety
- [11.147] Who May Provide the Bond
- Cook County
- [11.148] Circuit Court Rule
- [11.149] Civil vs. Personal Sureties
- [11.150] Obtaining a Bond from a Surety Company
- [11.151] Who Retains the Original Bond?
- [11.152] Additional Bonds/Increasing the Bond Amount
- [11.153] Renewing the Bond
- [11.154] Reducing the Amount of the Bond
- [11.154] Reducing the Amount of the Bond
- [11.155] Service of Inventory to the Surety
- [11.156] Canceling the Bond Once Probate Is Closed
- [11.157] Depositing Personal Property with a Corporation for Safekeeping
- XXXI. At the Court Hearing
- XXXII. Submitting and Obtaining Court Orders
- XXXIII. [11.163] After Probate Is Opened
- [11.164] Obtaining and Ordering Letters of Office
- [11.165] Drafting and Serving the Inventory
- [11.166] Purpose of the Inventory
- [11.167] Inventory Court Form
- [11.168] Inventory Need Not Be Filed with the Court
- [11.169] What To Include in the Inventory
- [11.170] Service of the Inventory by the Representative
- [11.171] Amending or Supplementing the Inventory
- [11.172] Local Court Rules
- [11.173] Inventory as Evidence
- XXXIV. [11.174] Dos and Don’ts
- Chapter 12 — Notifying Interested Parties
- I. [12.1] Notice Requirements in Probate
- II. Notice to Interested Persons
- III. [12.9] Notice to Unknown Heirs or Known Heirs and Legatees Whose Whereabouts Are Unknown
- IV. [12.10] Decedent, Heirs, and Legatees Residing Outside the United States
- V. Change in Distributive Rights: Disclaimers, Renunciation, or Death of a Distributee
- VI. Omitted or Unnotified Heir or Legatee
- [12.17] Newly Discovered Heir’s or Legatee’s Identity (Name) and Address
- [12.18] Subject Matter and In Personam Jurisdiction
- [12.19] Procedure
- Amended Petition for an Omitted Heir or Legatee
- [12.20] Testate Matters
- [12.21] Intestate Matters
- [12.22] Effective Date of the Order
- [12.23] Intestate Matters
- [12.24] Testate Matters
- [12.25] Apprising the Court That Notice Was Sent
- [12.26] Completing Cook County Circuit Court Form CCP 1000, Proof of Mailing and Publication
- [12.27] When Is an Interested Party No Longer an Interested Party?
- [12.28] After Final Determination and Satisfaction of a Party’s Rights
- [12.29] Upon Payment of a Creditor in Full
- [12.30] Rights Not Extinguished for Interested Persons Yet To Receive Their Share in Full
- [12.31] Extinguishing Rights
- [12.32] Certain Parties’ Rights Not Extinguished After Probate Is Closed
- VII. Notice and Registration Requirements for Charitable Estates with Charitable Bequests
- [12.33] Fulfilling the Illinois Attorney General’s Requirements for Charitable Legatees
- [12.34] Entities Required To Register with and Notify the Attorney General’s Office
- [12.35] The Attorney General as a Necessary Party in Probate and Other Legal Actions with Trusts and Estates Pursuant to Common Law
- [12.36] Cook County Probate Division General Order Dated July 19, 1989
- [12.37] Penalties for Failure To File
- [12.38] Ascertaining the Existence of the Charity and Verifying Its Tax-Exempt Status
- Notifying and Filing Copies of Instruments and Registering with the Attorney General’s Office
- [12.39] Notice Required Pursuant to Common Law — Notice to the Attorney General as an Interested and Necessary Party in Probate
- Notice Pursuant to the Charitable Trust Act and Administrative Rules
- [12.40] Registration Requirements
- [12.41] Additional Charitable Trust Bureau Requirements and When They Apply
- [12.41] Additional Charitable Trust Bureau Requirements and When They Apply
- [12.42] Annual report
- [12.43] In lieu of the annual report
- [12.44] Extension of Time
- [12.45] No Proof of Notice or Compliance Required by the Court
- VIII. [12.46] Notice Requirements for Trustees of Trusts as Legatees
- Chapter 13 — Will Contests and Formal Proof of Will
- I. [13.1] The Effect of a Successful Will Contest
- II. [13.2] Requirements for the Admission of a Will to Probate
- III. Formal Proof of Will Hearing — A Pre-Will Contest Opportunity
- IV. [13.5] Who Can Challenge a Will Admitted to Probate
- V. [13.6] Statute of Limitations
- VI. Grounds To Challenge a Will Admitted to Probate
- [13.7] Forgery
- [13.8] Revocation
- [13.9] Lack of Testamentary Capacity
- Undue Influence
- [13.10] Alleging Undue Influence Specifically
- [13.11] Alleging the Presumption of Undue Influence
- [13.12] Element #1: A Fiduciary Relationship Exists Between the Testator and a Person Who Receives a Substantial Benefit from the Will
- [13.13] Element #2: The Testator Is the Dependent and the Beneficiary the Dominant Party
- [13.14] Element #3: The Testator Places Trust and Confidence in the Beneficiary
- [13.15] Element #4: The Will Is Prepared by or Its Preparation Procured by Such Beneficiary
- [13.16] Overcoming the Presumption of Undue Influence
- [13.17] Spousal (Undue) Influence
- VII. [13.18] Presumptively Void Transfers
- VIII. [13.19] The Dead-Man’s Act
- IX. [13.20] No-Contest Clauses
- X. [13.21] Illinois Pattern Jury Instructions — Will Contests
- XI. [13.22] Doctrine of Election
- XII. Pleadings Tips
- Chapter 14 — Renunciation of Will and Lost Wills
- Chapter 15 — Advising the Representative — Fiduciary Powers, Duties, and Tasks
- I. [15.1] Introduction
- II. Fiduciary Powers
- III. Duties
- IV. [15.8] Advising the Representative
- V. Employer Identification Numbers
- [15.9] In General
- [15.10] Before Applying for an Employer Identification Number
- [15.11] Third-Party Designee
- [15.12] Applying for an Employer Identification Number
- [15.13] The Online Assistant
- [15.14] How To Apply Online
- [15.15] Tips for the Online Session
- [15.16] By Fax
- [15.17] By Mail
- [15.18] Completing Form SS-4, Application for Employer Identification Number
- [15.19] After Obtaining the Employer Identification Number
- [15.20] Employer Identification Number Applied for, but Not Received
- VI. [15.21] Opening an Estate Bank Account
- VII. Communications with Estate Beneficiaries
- [15.25] Information the Beneficiaries Are Entitled To Receive
- [15.26] Frequently Asked Questions by Beneficiaries
- [15.27] Introductory Letter to the Beneficiaries
- [15.28] When the Beneficiaries Contact the Attorney
- [15.29] Frequency of Updates to the Beneficiaries
- [15.30] Attorney’s Duty to the Estate Beneficiaries
- Chapter 16 — Decedent’s Estate Expenses and Creditors’ Claims
- I. Overview and the Practical Side of Creditor Claims
- [16.1] Creditor Petitioning To Open Probate
- Liability for the Decedent’s Final Expenses and Creditors
- [16.2] Is the Personal Representative Liable to the Estate Creditors?
- [16.3] Are the Distributees Who Inherit Estate Assets Liable for Estate Debts?
- [16.4] Can the Distributees Be Liable for Claims Against an Estate Asset?
- [16.5] Apportionment of Federal Estate Taxes Between Probate and Nonprobate Assets
- [16.6] What Is a “Claim”?
- Inheriting Debt
- [16.7] In General
- [16.8] Family Expenses
- Types of Debts
- [16.9] Family Expenses
- [16.10] Debts Against the Deceased Person
- [16.11] Deceased Mortgagors
- [16.12] Small Estate Affidavits
- [16.13] Miscellaneous Debts
- II. [16.14] Secured Claims in Probate
- III. [16.23] Priority of Payment of Claims
- First-Class Claims
- [16.24] Funeral and Burial Claims
- [16.25] Guardianship Costs for Any Minor Heir or Legatee or Heir or Legatee with a Disability
- [16.26] Expenses of Administration
- [16.27] Representatives’ Fees
- [16.28] Claims by the Estate Attorney or the Representative
- [16.29] Advances on Estate Expenses Incurred by a Personal Representative
- [16.30] Second Class Claims — Representative Shall Apply for and Send Notice of Allowance of Spouse’s and Child’s Awards
- [16.31] Independent Representative Shall Make Application for Spouse’s and Child’s Awards
- [16.32] Independent Administration — Minimum Award Allowed Without Application to the Court
- [16.33] Application for the Spouse’s Award for an Amount Greater than the Minimum (i.e., Nine Months After the Date of Death)
- [16.34] Purpose of Statute; Spouse’s Award Should Be Liberally Construed
- [16.35] Evidence Considered
- [16.36] Totality of Circumstances Considered
- [16.37] Court May Consider Nonprobate Assets Received by Spouse
- [16.38] Not Restricted To Bare Necessities
- [16.39] Goods and Chattels
- [16.40] The Independent Representative Shall Send Notice When a Spouse’s or Child’s Award Is Allowed
- [16.41] Adult Dependent Child’s Award — Representative’s Duty To Notify Family Members
- IV. [16.42] Duty To Notify Creditors
- [16.43] Absolute Bar Two Years After the Decedent’s Date of Death
- [16.44] If the Representative Erroneously Provides a Date Beyond the Two-Year Bar Date in the Claims Notice
- [16.45] Failure To Provide Actual Notice
- [16.46] How Notice Must Be Given
- [16.47] Actual Notice
- Published Claims Notice
- [16.48] When Must Publication Be Given?
- [16.49] Combined Notice to Creditors with Notice to Unknown Heirs or Heirs or Legatees Whose Whereabouts Are Unknown
- [16.50] Where Must Notice Be Published?
- Options in Cook County
- [16.51] Chicago Daily Law Bulletin
- [16.52] Online
- [16.53] Email
- [16.54] Option for Chicago’s suburban and collar counties
- [16.55] Information To Send to the Newspaper Publisher
- [16.56] Certificate of Publication
- [16.57] Barred Creditors
- Creditors To Be Notified
- [16.58] In General
- Reasonably Ascertainable Creditors
- [16.59] “Reasonably Ascertainable” Defined
- [16.60] Minimum Standards of Diligent Inquiry Required by the Representative
- [16.61] Are Reasonably Ascertainable Creditors Barred by Published Notice?
- [16.62] Actual Notice Required for Reasonably Ascertainable and Known Creditors
- V. [16.63] Default Statutory Creditor Period
- [16.64] Claims Filed Outside of the Two-Year Default Statutory Period
- [16.65] Exceptions (Claims That Are Not Barred by 755 ILCS 5/18-12)
- Creditor Rights Extinguished by Payment or Compromise
- [16.66] Payment According to Statutory Priority
- [16.67] Claims Paid in Full
- [16.68] Representative’s Allowance and Disallowance of Creditor Claims
- VI. [16.69] Creditor Claims Reference Guide for Independent Administration
- [16.70] Estates Assets Subject to Claims
- [16.71] Claims That Are Not Barred by 755 ILCS 5/18-12
- [16.72] Claims of the Representative or Representative’s Attorney
- [16.73] Classification of Claims
- [16.74] Representative’s Affirmative Duties
- [16.75] Optional Notice of Disallowance of Claim To Bar Claims in Two Months
- [16.76] How To Make a Valid Claim
- [16.77] Representative’s Response to a Claim
- [16.78] Estate Assets Insufficient To Pay All Claims (Insolvency and Abatement of Claims)
- [16.79] Claims Filed in Court
- [16.80] At the Claim Hearing
- [16.81] When All Claims Are Barred
- Credit Card Companies
- [16.82] Sending Notice of the Decedent’s Death
- [16.83] Handling Credit Card Companies
- [16.84] Student Loans
- VII. [16.85] Creditor Claims Dos and Don’ts
- VIII. Creditor Notice Cheat Sheet: Actions Required After the Representative Is Appointed
- [16.86] Notice to Unknown Creditors
- [16.87] When Are Claims Barred?
- [16.88] Publication Alone Does Not Bar Known Creditors
- [16.89] Notice to Known and Reasonably Ascertainable Creditors
- [16.90] What Is a Reasonably Ascertainable Creditor?
- [16.91] Minimum Standards of Diligent Inquiry by the Representative
- [16.92] The Notice
- [16.93] Timing of the Notice Is Critical
- [16.94] Filing the Form
- Errors or Missing Information in the Notice
- [16.95] Failure to comply with the statutory claims notice requirements
- [16.96] The representative provides a claims date beyond the two-year bar date
- IX. Creditor Claims
- X. [16.102] Notice to Unknown and Known Creditors
- XI. [16.103] Absolute Bar Date for Filing Claims
- XII. Procedure for Filing Claim
- XIII. Allowance or Disallowance of a Claim by the Representative
- XIV. Contested Claims
- XV. [16.113] Closing the Estate, Final Report, and Satisfaction of Claims
- XVI. [16.114] Medicaid Claims Against the Decedent’s Estate
- [16.115] Where Is the Law?
- [16.116] Federal Exemptions to Recovery
- Special Rules for Illinois Estates
- [16.117] The $25,000 Exemption
- [16.118] No Recovery from Estate of Spouse
- [16.119] “Homestead” Broadly Defined
- [16.120] Liens Against Real Estate Abolished
- [16.121] Medicaid Can Recover from Some Nonprobate Assets
- [16.122] Damages for Wrongful Death Are Different than Damages for Survival Actions
- [16.123] Recovery of Medicaid Assistance Provided by Other States
- [16.124] Nursing Home Care Act
- [16.125] Other Embellishments to Illinois’ Medicaid Recovery Rules
- [16.126] Concepts That Seem Similar to Medicaid Recovery from Estates
- [16.127] Sibling with an Equity Interest in the Homestead
- [16.128] Caretaker Children
- [16.129] Transfers to Persons in Protected Classes
- [16.130] Some Property Is Exempt or Disregarded During Life but May Not Be Exempt at Death
- [16.131] Assets Held in Uniform Transfers to Minors Accounts
- [16.132] “Specialty” Resources
- XVII. [16.133] Medicaid’s “Super Right of Recovery”
- XVIII. What Is and What Is Not Included in a Claim
- XIX. [16.145] Contact Information
- Chapter 17 — Marshaling Assets
- I. Marshaling Assets
- II. Questions To Ask Before Marshaling Assets
- III. How To Liquidate or Transfer Ownership of the Decedent’s Assets
- IV. Types of Assets
- V. [17.13] Inherited Retirement Accounts
- VI. Other Accounts
- [17.19] Social Security and Pensions
- [17.20] Original Stock Certificates
- [17.21] Refunds
- [17.22] Retirement Home Buy-In or Occupancy Agreements
- [17.23] Unclaimed Property
- Property Searches
- [17.24] Broad, Quick Search
- [17.25] Advanced Search
- [17.26] Application To File a Claim
- [17.27] Check the Status of a Claim
- [17.28] Cash
- [17.29] United States Savings Bonds
- [17.30] Contacting the Treasury
- Valuation
- [17.31] Savings Bond Calculator for Paper Bonds
- [17.32] Redemption Tables
- [17.33] Reporting a Death of a Savings Bond Owner; Reregistering the Owner Name or Liquidating (Redeeming) the Bonds
- [17.34] Best Method To Reregister or Redeem Bonds
- [17.35] Cashing in Bonds with TreasuryDirect
- [17.36] Cashing in Bonds and Issuing Payment to the Representative of the Estate
- [17.37] Reregistering the Bonds
- [17.38] Distributing an Estate’s Savings Bonds as Estate Representative
- [17.39] Missing Bonds
- [17.40] Business Interests
- [17.41] Intellectual Property
- [17.42] Maintaining and Preserving
- [17.43] Copyrights and Royalties
- Tangible Property
- [17.44] Vehicles in General
- [17.45] Leased and Financed Vehicles
- [17.46] Vehicle Title Transfers
- [17.47] By Mail or in Person
- [17.48] Currency Exchange
- [17.49] Selling the Vehicle to a Buyer
- [17.50] Transferring the Title to the Representative Before Selling
- [17.51] Lost Vehicle Title
- [17.52] Other Tangible Personal Property
- [17.53] Digital Assets
- VII. [17.54] What if an Asset Is Not Worth Collecting?
- VIII. [17.55] Unwanted Inheritance
- IX. Real Estate
- [17.56] If Real Estate Is the Sole Asset
- [17.57] Real Estate Pitfalls
- [17.58] Common Myths and Pitfalls Involving Real Estate
- [17.59] The Independent Representative’s Power over Real Estate
- [17.60] Checklist of Representative’s Actions in Managing Real Estate
- [17.61] Real Estate Does Not Need To Be Conveyed to the Estate Representative
- Actions for the Estate Representative To Take with Real Estate
- [17.62] Preservation
- [17.63] Insurance
- [17.64] Taking Possession
- [17.65] Removal and Eviction
- [17.66] Dealing with “Underwater” Properties
- [17.67] Valuation
- [17.68] Sale or Release of Real Properties
- [17.69] Real Estate Specifically Bequeathed
- [17.70] Completion of a Real Estate Contract Signed by the Decedent
- [17.71] Notice of Probate and Release of Estate’s Interest in Real Estate
- [17.72] Clean Out
- [17.73] Listings
- [17.74] Bonds
- [17.75] Out-of-State Property Responsibilities
- [17.76] Tenants and Leases
- [17.77] Reasons To Sell Real Estate During Probate
- Notice of Probate and Release of Estate’s Interest in Real Estate
- [17.78] In General
- [17.79] Recording the Notice
- [17.80] Executor’s or Administrator’s Deed
- [17.81] Abatement and Real Estate
- [17.82] Mineral, Oil, and Gas Leases, Rights, and Royalties
- [17.83] General Timeline of Illinois Real Estate in Decedent’s Estate in Probate
- X. [17.84] Marshaling Assets Titled in the Decedent’s Name Alone (or Those Having No Surviving Beneficiary)
- Chapter 18 — Recovery of Property and Citations To Discover
- I. [18.1] Purposes of Citations in Guardianship Matters and Decedents’ Estates
- II. Citation To Discover
- [18.2] Statute and Elements
- [18.3] Procedure for the Issuance of Citations To Discover
- [18.4] Service of the Citation To Discover
- [18.5] Appearance of the Citation Respondent
- [18.6] Citation Examination
- [18.7] Affidavit in Lieu of Examination
- [18.8] Discharge
- [18.9] When the Citation Respondent Is the Representative of the Estate
- [18.10] When the Party Responsible for Costs Is Involved in Citation Proceedings
- [18.11] Recovery of Information or Property by Third Parties Against an Estate
- [18.12] Objectives
- [18.13] Motion Practice, Discovery, and Trial
- [18.14] Ruling/Judgment
- Chapter 19 — Tax Returns and Liability
- I. Working with an Accountant
- II. [19.10] Attorney Responsibility for Tax Returns
- III. [19.11] Taxes
- [19.12] Income Taxes
- [19.13] Final Individual Income Tax Return
- [19.14] Initial Fiduciary Income Tax Return
- [19.15] The 645 Election
- [19.16] How Income Is Taxed on a Fiduciary Return
- [19.17] The 65-Day Election
- [19.18] Estimated Payments
- [19.19] Final Year Distributions
- [19.20] Estate Taxes
- [19.21] Federal Estate Tax
- [19.22] Illinois Estate Tax
- [19.23] Valuation Date and Alternate Value Date
- [19.24] Due Date
- [19.25] Paying the Estate Tax
- [19.26] Portability
- [19.27] Miscellaneous Tax Issues
- [19.28] Final Year Required Minimum Distribution
- [19.29] Basis Step-Up
- [19.30] Income In Respect of a Decedent
- [19.31] Avoiding Liability for Taxes as Executor
- [19.32] Form 56
- [19.33] Executors Fees
- Chapter 20 — Death, Resignation, Removal, or Revocation of Letters of Office and Termination of Independent Administration
- I. [20.1] Removal of an Executor
- [20.2] Securing Letters of Office by False Pretense — 755 ILCS 5/23-2(a)(1)
- [20.3] Mismanagement, Unsuitability, and Other Good Cause — 755 ILCS 5/23 2(a)(4), 5/23-2(a)(9), 5/23-2(a)(10)
- [20.4] Other Provisions
- [20.5] Revocation of Letters of Office — 755 ILCS 5/23-5
- [20.6] Breach of Fiduciary Duty
- [20.7] Resignation or Death of the Representative
- II. [20.8] Failure or Refusal To Qualify: Death, Resignation, or Revocation of Letters
- Testate Matters
- [20.9] Who May Fill the Vacancy as Executor
- [20.10] If an Executor Dies, Resigns, or Has Letters Revoked
- [20.11] Appointing a Successor Executor
- [20.12] Intestate Matters (or Testate Matters When No Executor Is Named)
- Filling Vacancies
- [20.13] Who May Fill the Vacancy as Administrator
- [20.14] What Must Be Done To Fill a Vacancy
- [20.15] When the Former Representative Did Not File a Current or Final Account
- III. [20.16] Termination of Independent Administration
- Chapter 21 — Accounting, Receipts, and Distributions; Representative’s Compensation and Preparing To Close Probate
- I. [21.1] Introduction
- II. Representatives’ Compensation and Reimbursement
- III. Estate Inventory and Accounting
- [21.7] Duty To Draft and Serve the Inventory
- [21.8] Duty To Account
- [21.9] What Is an Estate Accounting?
- [21.10] When Is the Accounting Due?
- [21.11] Current vs. Final Accountings
- To Whom Is the Accounting Presented?
- [21.12] Presentment and Filing with the Court Is Excused in Independent Administration
- [21.13] Interested Persons
- [21.14] Records and Evidence of the Accounting
- [21.15] The Accounting Is Not Filed with or Presented to the Court
- [21.16] Waiving the Preparation of an Accounting
- [21.17] Notice of Accounting
- [21.18] Notice or Accounting to, or Action by, a Trust Beneficiary Is Not Required
- [21.19] Cook County Norris Rule
- [21.20] Approving an Accounting
- [21.21] Failure To File an Inventory or Accounting
- [21.22] When a Representative Becomes Disabled or Dies
- How To Draft an Accounting
- [21.23] Obtain Information To Prepare the Account
- [21.24] Review All Records Concerning the Estate’s Assets and Expenses
- [21.25] Title the Accounting
- [21.26] Enter the Information
- [21.27] Recommended Sections in the Account
- Complete Each Section
- [21.28] Inventory receipts
- [21.29] Non-inventory receipts
- [21.30] Disbursements
- [21.31] Distributions
- [21.32] Recapitulation
- [21.33] Expected final expenses of the estate
- [21.34] Suggested distribution to beneficiaries (heirs or legatees as appropriate)
- IV. Abatement or Equalization of Legacies
- V. Distributions
- [21.37] Timing
- [21.38] Partial Distributions and Current Accounting
- Receipts
- [21.39] In General
- [21.40] Who Signs the Receipt
- [21.41] Receipt of Distributee by Attorney-in-Fact or Consul
- [21.42] Receipts of Substituted Takers and/or Successors in Interest
- [21.43] Receipts for Pecuniary, Demonstrative, or Specific Bequests
- [21.44] Making the Distribution
- [21.45] Cook County Forms
- [21.46] Interest
- [21.47] Uncooperative, Unknown, or Unlocatable Distributees
- [21.48] Forty-Two Days’ Notice to Distributees
- [21.49] Apportionment of Attorneys’ Fees Against the Share of the Recalcitrant Distributee (or Party Other than the Estate)
- [21.50] When a Receipt Cannot Be Obtained and an Asset Cannot Be Distributed to a Distributee
- [21.51] Distributing a Share to Someone Other than the Beneficiary
- [21.52] Family Settlement Agreements
- [21.53] Distributions to a Fiduciary of a Minor Child or Person with a Disability
- [21.54] In-Kind Distributions
- [21.55] Personal Property
- [21.56] Real Property
- [21.57] Distributing Real Estate
- [21.58] Refunding Agreements
- [21.59] Refusal To Account, Pay Claims, or Pay Distributive Share
- VI. [21.60] Closing Probate
- [21.61] Which Comes First: Preparing the Final Report or Making Distributions?
- [21.62] Which Comes First: Obtaining Signed Receipts or Making Distributions?
- [21.63] How To Prepare the Final Report
- [21.64] Deadlines
- [21.65] Fourteen-Month Court Status Date
- [21.66] When Can Probate Be Closed
- [21.67] Prior to Closing Probate
- [21.68] Preparing To Close
- VII. [21.69] After the Estate Is Closed
- VIII. [21.70] Dos
- Chapter 22 — Distribution of Wrongful-Death and Survival Settlements in Probate Court
- I. [22.1] Introduction
- II. Nature of Wrongful-Death and Survival Claims
- Wrongful-Death Claims
- [22.2] The Wrongful Death Act
- [22.3] Can a Wrongful-Death Claim Be Settled Without a Court Order?
- [22.4] The Plaintiff in a Claim Under the Wrongful Death Act
- [22.5] Wrongful-Death Claims Are Not Probate Assets
- [22.6] Identifying Next of Kin
- [22.7] Determining Dependency on the Decedent
- Survival Statute Claims
- [22.8] The Survival Statute Allows the Decedent’s Estate To Pursue Certain Claims
- [22.9] Probate Estate Needed To Pursue Survival Claims
- [22.10] Special Representatives
- [22.11] Survival Claims as Estate Assets
- III. [22.12] Obtaining Court Approval of Wrongful-Death and Survival Settlements
- [22.13] Wrongful-Death Settlement Approval
- [22.14] Lawsuit Filed
- [22.15] Trial Court’s Role
- Percentage of dependency
- [22.16] Next of kin have reached agreement on dependency
- [22.17] Judge must determine dependency
- [22.18] Other determinations to be made by trial judge
- [22.19] Additional items to be included in Cook County settlement order
- [22.20] Vouchers
- [22.21] Probate Court’s Role
- [22.22] No Lawsuit Filed
- Survival Claim Approval
- [22.23] Lawsuit Filed
- [22.24] No Lawsuit Filed
- [22.25] Small Estate Affidavit
- [22.26] Wrongful-Death and Survival Claim Approval
- The Trial Court
- [22.27] Allocation Between Wrongful-Death and Survival Claims
- [22.28] Who Is the Attorney’s Client and to Whom Does the Attorney Owe a Duty?
- [22.29] Remainder of Process Is Similar to Sole Claims for Wrongful Death or Survival
- [22.30] Probate Court
- V. [22.31] Minors and Persons with Disabilities
- [22.32] Ward Receiving Distribution of Wrongful-Death or Survival Claim Proceeds
- Lawsuit Filed
- [22.33] Trial Court
- Appointment of guardian ad litem
- [22.34] Purpose of guardian ad litem
- [22.35] Guardians ad litem in wrongful-death matters
- [22.36] Payment of guardian ad litem fees and expenses
- [22.37] Opening of guardianship in probate court required
- [22.38] Probate Court
- [22.39] No Lawsuit Filed
- Ward’s Personal Injury Claim
- [22.40] Lawsuit Filed
- [22.41] Trial Court
- [22.42] Probate Court
- No Lawsuit Filed
- [22.43] Fair and Reasonable Finding
- [22.44] Other Determinations To Be Made by the Guardianship Judge
- [22.45] Guardians Ad Litem
- [22.46] Potential Issue Regarding the Minor’s Medical Bills
- Small Estate Affidavit for Minor or Person with a Disability
- [22.47] Use of Small Estate Affidavit
- [22.48] Opening Guardianship when Settlement Is Less than $10,000
- V. [22.49] Conclusion
- Chapter 23 — Reopening Probate
- I. Reopening Probate
- II. How To Reopen Probate
- [23.6] What Is Required To Reopen an Estate
- [23.7] Court Case Numbers
- [23.8] Pleadings That Must Be Filed
- [23.9] Drafting the Petition To Reopen Probate
- [23.10] Must a New Bond Be Obtained?
- Affidavit of Heirship
- [23.11] If Heirship Has Not Changed
- [23.12] If an Heir or Legatee Died After Probate Was Closed
- [23.13] Who Must Be Given Notice?
- III. [23.14] Administering and Closing the Reopened Estate
- Chapter 24 — Ethical Considerations in Probate Cases
- I. [24.1] Introduction
- II. Forming the Attorney-Client Relationship
- III. Probating the Estate
- [24.7] Establishing the Attorney-Client Relationship
- [24.8] Scope of Representation
- [24.9] Retainer and Retainer Agreements
- [24.10] Who Is the Client?
- Communication
- [24.11] Communicating with the Client
- [24.12] Communicating with Third Parties
- [24.13] Safekeeping Property
- [24.14] Terminating Representation
- [24.15] Role as Advisor
- Responsibilities Under the Rules of Professional Conduct
- [24.16] Partners, Managers, and Supervisory Lawyers
- [24.17] Responsibilities of a Subordinate Lawyer
- [24.18] Responsibilities Regarding Nonlawyer Assistance
- Conduct Before the Court
- [24.19] Meritorious Claims
- [24.20] Expediting Litigation
- [24.21] Candor Toward the Tribunal
- [24.22] Fairness to Opposing Party and Counsel
- [24.23] Impartiality and Decorum of the Tribunal
- [24.24] Reporting Professional Misconduct
- IV. Closing the Estate
- [24.29] The Estate Is Closed
- V. [24.30] Conclusion
- Chapter 25 — Appendix
- I. Forms
- [25.1] Affidavit of Diligent Inquiry To Locate and Contact Estate Beneficiary (Distributee)
- [25.2] Affidavit of Heirship (Narrative for Cook County) — Collateral Heirs (First Cousins and Cousins-Once-Removed)
- [25.3] Affidavit of Heirship (Narrative for Cook County) — Collateral Heirs (Parents and Siblings)
- [25.4] Affidavit of Heirship (Narrative for Cook County) — Surviving Descendants
- [25.5] Affidavit of Heirship (Narrative for Cook County) — Surviving Descendants — Adult Children, Predeceased Adult Child, and Surviving Grandchildren
- [25.6] Estate Interview Form
- [25.7] Final Accounting
- [25.8] Final Report Attachment Sample for Insolvent Estates — Cook County Form CCP 1011
- [25.9] Notice of Petition To Probate Will and for Letters Testamentary
- [25.10] Order Reopening the Estate
- [25.11] Petition for Attorneys’ Fees and Costs Pursuant to Claim Filed
- [25.12] Petition To Admit Copy of Will to Probate
- [25.13] Petition To Appoint Successor Independent Executor (Testate)
- [25.14] Petition To Deposit Funds with the State Treasurer
- [25.15] Petition To Deposit Unclaimed Funds with the State Treasurer
- [25.16] Petition To Reopen Estate — Petitioner as the Independent Administrator with Will Annexed of the Estate
- [25.17] Petition To Reopen Estate — Petitioner Is the Former Representative
- [25.18] Representative’s Designation of a Personal Fiduciary for a Minor Heir
- [25.19] Safe-Deposit Box — Affidavit of an Interested Person
- [25.20] Small Estate Affidavit for Minor’s Estate Pursuant to 755 ILCS 5/25-2
- II. Letters
- General Probate Letters
- [25.21] Asset Collection Letter for Unknown Account Number
- [25.22] Email Closing Probate
- [25.23] Intestate Email Opening Probate
- [25.24] Letter Instructing Bank To Open an Estate Bank Account
- [25.25] Letter Sending a Notice of Disallowance
- [25.26] Letter to Beneficiary Giving 42 Days’ Notice To Object to the Filed Final Report
- [25.27] Letter To Collect Stock Held with Transfer Agent
- [25.28] Letter to Credit Card Company (Seventh-Class Claimant)
- [25.29] Letter to Legatees Requesting Each Sign a Waiver of Notice and Consent to Appointment
- [25.30] Letter To Order Certified Copies of Letters of Office
- [25.31] Letter to the Estate Representative
- [25.32] Letter to the Estate Representative with Instructions for Opening the Estate Bank Account
- [25.33] Notice of 42 Days To Contest Final Report
- [25.34] Retainer Letter to Client as Petitioner for Appointment as Estate Representative
- [25.35] Testate Email Opening Probate
- Attorney General Letters
- [25.36] Filing the Annual Report with the Attorney General
- [25.37] Final Notice to the Attorney General
- [25.38] Letter Accompanying Initial Filing of Copies of Instruments at the Start of Probate
- [25.39] Letter for Additional Requirements (if Final Distributions to Charities Cannot Be Made Within One Year After the Date of Death)
- [25.40] Letter Sending Attorney General’s Charitable Trust Bureau Registration Forms CO-1 and CO-2
- [25.41] Letter to Attorney General After Receipts Are Obtained and Distributions Made to Charitable Legatees
- III. Checklists
- [25.42] Actions a Testate Petitioner Can Take Before Letters of Office Are Issued
- [25.43] Creditor Notice Cheat Sheet
- [25.44] Immediate Actions Petitioner Can (and Cannot) Take Before Opening Probate
- [25.45] Probate Matter Checklist — Intestate Estates
- [25.46] Probate Matter Checklist — Testate Estates
- [25.47] Responsibilities of a Trustee
- [25.48] Review of Last Will
- IV. Timelines
- V. Charts
- [25.52] Decedent Real Estate Flowchart — Decedent Had Ownership Interests in Real Estate
- [25.53] Decedent Real Estate Flowchart — How Decedent’s Interests in Real Estate Pass
- [25.54] Decedent Real Estate Flowchart — Should Probate Be Pursed or a Bond in Lieu of Probate?
- [25.55] Decedent’s Property in Illinois — How Is Account or Asset Titled or Owned?
- [25.56] Extended Family Heirship Chart
- [25.57] How To Discover the Disposition of an Asset
- [25.58] List of Assets
- [25.59] Marshalling Assets Titled in Decedent’s Name Alone (or Those Having No Surviving Beneficiary)
- [25.60] Tax Chart
- [25.61] When Are All Creditors Barred?
Authors
- Sherwin D. Abrams
Sherwin D. Abrams
Sherwin D. Abrams is a retired Partner from Abrams & Chapman LLP, in Huntley, where he concentrated his practice in corporate law. Abrams was an adjunct professor at Chicago Kent College of Law from 2005 – 2021. He received his J.D. and B.A. from Northwestern University.
- Makedonka Baloski
Makedonka Baloski
Makedonka Baloski is an attorney with Kelleher + Holland, LLC, in North Barrington, and is Cochair of the firm’s Estate and Trust Administration Practice Group. Baloski is a VA accredited representative and a Member of the Illinois State and Northwest Suburban Bar Associations and the DuPage County Estate Planning Council. She received her B.A. from Indiana University and her J.D. from Valparaiso School of Law, where she was a Member of the Law Review and the Jessup Moot Court.
- Leonard F. Berg
Leonard F. Berg
Leonard F. Berg is a retired solo practitioner, in Godfrey, who practiced in elder law and special needs. Berg has received the Powley Award from the National Academy of Elder Law Attorneys for promoting a greater understanding of the rights and needs of the elderly and persons with special needs, the Pro Bono Award from the Illinois Third Judicial Circuit, and the Ron Runkle Award from the Illinois Chapter of the National Academy of Elder Law Attorneys, for service to other members of the profession. He received his J.D. from Washington University School of Law and his B.A. from Knox College.
- Amy Delaney
Amy Delaney
Amy Delaney is a Managing Partner at DDV Law, Ltd., in Arlington Heights, Orland Park, and Chicago, where she focuses her practice on elder law, trusts, and estates. Delaney is a board-certified elder law attorney (CELA), certified by the National Elder Law Foundation and the American Bar Association. She holds an AV Preeminent rating from Martindale-Hubbell, and she has been recognized by Super Lawyers as one of the Top 50 Female Attorneys in Illinois. Delaney received her B.A. from the University of Illinois Urbana-Champaign, her M.S. from the University of Illinois Springfield, and her J.D. from Lewis and Clark Law School.
- J. Amber Drew
J. Amber Drew
J. Amber Drew is a Partner at Clingen Callow & McLean, LLC, in Lisle, and concentrates in estate planning, trust and estate administration, and guardianships. Drew is a Council Member of the Illinois State Bar Association’s Elder Law (Past Chair) and Trust and Estates Section Councils, as well as Board Member and Past Treasurer of the Fox Valley Estate Planning Council. Drew received a B.A. from DePauw University and a law degree from the University of Illinois College of Law.
- Lawrence J. Gregory
Lawrence J. Gregory
Lawrence J. Gregory is an attorney with Estate & Business Law Group, PC, in Libertyville, and practices primarily in the areas of business and estate planning. Gregory, who is also a CPA, received his J.D. from The John Marshall Law School and a double bachelor’s degree from Northern Illinois University.
- Caroline E. Hecht
Caroline E. Hecht
Caroline E. Hecht is a Managing Partner with Buckley Fine, LLC, in Barrington, and also chairs the firm’s Estate and Trust Administration practice group. Hecht concentrates her practice in estate planning, estate and trust administration, and minor and disabled adult guardianship and serves as a Guardian ad Litem for the Lake County Circuit Court’s probate division. She received her J.D. from the University of Wisconsin School of Law and her B.A. from the University of Wisconsin-Madison.
- Robert S. Held
Robert S. Held
Robert S. Held is an attorney at Held Law Offices, in Chicago, who represents corporate and individual fiduciaries — as well as beneficiaries — in complex estate and trust litigation, guardianship matters, and commercial litigation. He is a member of the Chicago Bar Association and Past Chair of its Trust Law Committee’s Insurable Interest Subcommittee, its Federal Taxation Committee, and its Estate and Gift Taxation Subcommittee. He received his B.A. from the State University of New York at Buffalo, his MBA from Eastern New Mexico University, and his J.D. from DePaul University.
- MacKenzie A. Hyde
MacKenzie A. Hyde
MacKenzie A. Hyde is a Member at Clark Hill PLC, in Chicago, and co-leads the firm’s Trusts and Estates Controversy practice, where she litigates on behalf of individuals and financial institutions. Hyde has been named a Leading Lawyer in Chicago by Leading Lawyers (2024 – 2025) and named among The Best Lawyers in America for Trusts and Estates by Best Lawyers (2025). She received her J.D. from Loyola University Chicago School of Law, her MAT from Dominican University, River Forest, and her B.A., summa cum laude, from the University of Arizona.
- Ray J. Koenig III
Ray J. Koenig III
Ray J. Koenig III is a Member of Clark Hill PLC in Chicago, where he focuses on trust, estate, and guardianship controversies. He is a Member of the Chicago Bar Association (President, 2023 – 2024) and a Fellow of the American College of Trust and Estate Counsel. He has been recognized by Super Lawyers as one of the Top 100 Lawyers in Illinois (2018 – 2020, 2025, 2026). Koenig received his BA from Michigan State University and his JD from the DePaul University College of Law.
- Melissa A. Maye
Melissa A. Maye
Melissa A. Maye is a sole practitioner at the Law Office of Melissa A. Maye, PLLC, in Nacogdoches, Texas, and concentrates her practice in estate planning and real estate. Maye is currently licensed in Texas but previously has been licensed in Illinois and Georgia. Maye earned a B.A. from Regis University and her law degree from Georgia State University College of Law.
- Raymond W. Prather
Raymond W. Prather
Raymond W. Prather is a Partner at Prather Ebner Wilson LLP, in Chicago, and focuses his practice on trusts and estates. Prather is an American College of Trust and Estate Counsel Fellow and Chair-Elect of the Real Property Trust and Estate Law Section of the American Bar Association. Prather received his B.A. from Augustana College and his J.D. from DePaul University College of Law.
- Colleen L. Sahlas
Colleen L. Sahlas
Colleen L. Sahlas is the Managing Partner at the Law Offices of Hoy & Sahlas, LLC, in Oak Brook. Since 2000, she has concentrated her practice in estate planning, probate, decedent’s estates, trust administration, real estate, and business. Sahlas was the recipient of the 2025 IICLE® Outstanding Achievement in Estate Planning Award. This annual award celebrates and acknowledges the exceptional contributions and distinguished accomplishments of Illinois attorneys who exemplify professionalism, innovation, and dedication in the field of estate planning and serves as a symbol of the profound impact the awardee has had on safeguarding and preserving the legacies of individuals, families, and communities. Sahlas is Former Chair of the Illinois State Bar Association Trusts and Estates Section Council (2024 – 2025), served on the ISBA Standing Committee on Legislation for the 2024 – 2025 term, and received a 5 Year Service Award as the Newsletter Editor of the ISBA Trusts and Estates Section Council. As Chair, Sahlas was the proponent of and commissioned the Trusts and Estates Section Council to amend the Small Estate Affidavit in 2024 to increase the threshold for personal property for small estates avoiding probate. She assisted in drafting and influencing the passage of the Small Estate Affidavit, S.B. 83, 104th Gen. Assem., which passed both houses and was signed into law by the Governor, effective August 15, 2025, as P.A. 101-346. Sahlas has also served on the Board of Directors of the DuPage County Estate Planning Council (2020 – 2022) and published Avoiding Liabilities When Working Alongside Real Estate Agents in the American Bar Association’s Probate & Property Magazine (July/Aug. 2019). In 2022, she was hand-selected to serve on a small legislative committee with the Illinois Real Estate Lawyers Association that successfully amended the Illinois Residential Real Property Disclosure Act. Sahlas earned a B.A. from Bethel University (formerly known as Bethel College) and a J.D. from The John Marshall Law School (now known as the University of Illinois at Chicago Law School).
- Priscilla Singer
Priscilla Singer
Priscilla Singer is Owner and Managing Attorney of Singer Law LLC, in Chicago, where she provides strategic, assertive, and compassionate legal counsel to help preserve, grow, and protect individuals, families, and family offices in matters involving trusts and estates litigation and administration, guardianship, estate planning, real estate, tax efficiency, and succession planning and family governance. Singer received her J.D. from Chicago-Kent College of Law, Illinois Institute of Technology, and her B.A. from Boston University.
- Steven A. Wade
Steven A. Wade
Steven A. Wade is an associate at Anesi Ozmon, Ltd., in Chicago, and concentrates his practice in probate, estate planning, trust administration, and real estate. Wade is a Member of the Illinois State Bar Association and its Trusts and Estates Council and the Chicago Bar Association and its Probate Practice Committee. He has also been distinguished as a Leading Lawyer (2023 – 2025). Wade received his B.A. summa cum laude from Wabash College and his J.D. from Indiana University Maurer School of Law.
Practical Probate 2025 Edition
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