August 18, 2019

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Illinois Probate Law

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Probate is the process of distributing a person’s property and settling their debts after they die. There are certain steps a person can take, while they are living, to minimize the need for probate and simplify the process. Probate is necessary with or without a will.

Probate Without a Will

When a person dies without a valid will, his or her property is distributed to that person’s heirs according to Illinois intestacy laws. Intestacy law outlines how property is to be divided between heirs, based on their relationship to the decedent, and the existence of other eligible heirs.

An executor and administrator are appointed by the court.


Without going through probate, creditors have up to two years to collect from the estate. The probate process shortens the amount of time to collect on debts owed by the decedent to six months.

Probate is Not Always Required in Illinois

Estate planning can keep much of an estate out of probate. Assets can be transferred before death in the form of gifts or a trust. Other devices, such as pay on death accounts and joint tenancy automatically pass property to the beneficiary with no need for probate.

In Illinois, an estate of less than $100,000 can be administered by an “interested person” who signs a Small Estate Affidavit, as long as the estate meets all of the small estate requirements and no one is contesting the will. The affidavit does not convey the power to transfer real property.

In order to sell real property you can wait two years for any potential claims by creditor to expire, or you can post a “bond in lieu of probate”. The bond fee is 1% or 2% of the sale price of the property, depending on when the bond is posted. If any claims are made against the estate the bonding company pays the claims and then seeks reimbursement from those who received the proceeds from the sale.

Benefits of Probate

Probating an estate can be an expensive and time consuming process, but in some cases it is the best way to go, even if it is not required by law. Probate settles matters, such as debts, and allows real property to be transfer more quickly so that heirs are free to move forward with peace of mind.

Probate also means that the estate can collect on debts owed to the decedent and can pursue compensation for personal injury or wrongful death.