The Probate Process Explained Step-by-Step

Probate is a court-supervised process that occurs after someone passes away. This process typically includes identifying a person's assets, paying off their debts, and distributing what’s left to heirs and beneficiaries. In Illinois, most estates are required to go through this process, which can often feel overwhelming, especially when dealing with the death of a loved one. 

Illinois follows a strict legal structure when it comes to probate, so it's important to reach out to an attorney who can guide you through the process and help you understand what to expect. At Zapolis & Associates PC, our goal is to break down this process into manageable steps so you can feel confident about what to expect. Here, we’ll walk you through the basic steps of the probate process as it applies in Illinois. 

What Is Probate? 

Probate is the legal procedure of proving a will and administering a deceased person’s estate. It’s overseen by the Probate Division of the Circuit Court in the county where the deceased lived. During probate, the deceased's assets are identified, liabilities are settled, and the remaining property is distributed to the rightful beneficiaries. 

Not all estates require probate. If the deceased person’s assets were jointly owned, held in a trust, or were passed by beneficiary designation (such as life insurance policies or retirement accounts), they can typically bypass the probate process. However, when these exceptions do not apply, probate is required to ensure an orderly transfer of property. 

Step 1: Determine If Probate Is Necessary 

Before starting the probate process, determine if probate is actually necessary. This can save time and unnecessary expenses for the estate. If all the deceased's assets are held jointly with another person, in a trust, or have designated beneficiaries, then probate may not be necessary. These assets will pass directly to the co-owner, trust, or beneficiary without going through probate. 

However, if any assets are solely owned by the deceased person and do not fall under any of these exceptions, then probate may be required. In Illinois, estates worth less than $100,000 and not involving real estate may qualify for a simplified process under a Small Estate Affidavit. Otherwise, formal probate is usually required. 

Step 2: Locate the Will (If Applicable) 

Probate is typically required for most estates, regardless of whether the deceased left a will. If the deceased has a will, it is important to locate it as soon as possible. This document typically names the executor or personal representative of the estate and outlines their responsibilities. It may also name beneficiaries and include specific instructions for distributing assets. 

If the will cannot be located or if the deceased does not have a will, the court will appoint an administrator to oversee the estate, typically a close relative of the deceased. However, without a will, any assets will be distributed according to a set hierarchy that may not align with the deceased's wishes. 

Step 3: File the Petition with the Court 

To initiate the probate process in Illinois, the named executor or administrator must file a petition to open the estate with the appropriate probate court. Once the petition has been filed, the executor or administrator will receive Letters of Office, granting them the authority to act on behalf of the estate. 

When filing the petition, you will typically need to include the original will, if one exists, and a certified copy of the death certificate. It's crucial to file in the correct county, which is usually where the decedent lived. After filing, the court will review the petition and officially appoint an executor or administrator, who will be responsible for managing the estate, paying debts, and distributing the deceased's assets. 

Step 4: Notify All Interested Parties and Creditors 

Once the probate case is opened, Illinois law requires the executor or administrator to notify all interested parties, including the deceased's heirs and beneficiaries. The executor or administrator is also required to inform any potential creditors. This can be done by publishing a notice in a local newspaper. 

Creditors generally have six months from the date of publication to file claims against the estate. This step helps ensure complete transparency and gives everyone with a potential interest in the estate a chance to come forward. 

Step 5: Inventory and Appraise the Estate Assets 

The executor or administrator is responsible for identifying and taking control of the decedent’s assets and submitting a complete inventory to the court. This includes bank accounts, real estate, vehicles, personal belongings, and any other property. 

It’s important to determine whether the assets are probate or non-probate assets. Non-probate assets, such as those held in joint tenancy or payable-on-death accounts, typically bypass probate and are distributed directly to the named beneficiaries. 

For probate assets, the executor must create a detailed inventory and value each item. Sometimes, professional appraisers may be required to determine the fair market value of certain items, such as real estate or unique personal property, like artwork or collectibles. 

Step 6: Pay Any Outstanding Debts and Taxes 

Before distributing the estate’s assets, Illinois law requires the executor to settle all outstanding debts, taxes, and creditor claims. This includes paying funeral expenses, medical bills, credit card debts, income tax, property tax, or estate tax.  

Executors should proceed carefully here. Illinois has an established order of priority for paying creditors. If certain creditors are unfairly given preference, the executor could be held personally liable. 

Step 7: Resolve Disputes 

Disputes can often arise during probate proceedings. Some common issues include heirs contesting the validity of the will, disagreements about how the executor is managing the estate, or claims from creditors. 

Illinois courts take these matters seriously and follow specific legal procedures to resolve disputes. If probate becomes contested, it's essential to contact an experienced probate attorney as soon as possible. 

Step 8: Distribute Assets to Beneficiaries 

Once debts, taxes, and expenses have been settled, the executor can distribute the remaining assets to the beneficiaries as outlined in the will. If no will exists, Illinois intestacy laws dictate the order of inheritance. For example, a surviving spouse and children are typically given priority, followed by other relatives such as parents or siblings. 

Step 9: Close the Estate 

Once the executor or administrator has met their responsibilities, they can close the estate. To do this, the executor must file a final accounting with the court that details all transactions during probate, including payments to creditors and distributions to beneficiaries. If the court approves the accounting, the estate is closed, the executor is officially released from their duties, and the probate process ends. 

Contact a Probate Attorney in Illinois Today 

Probate can often be confusing, especially when dealing with the death of a loved one. However, an experienced probate attorney can provide the knowledge and guidance you need to make informed decisions about your loved one's estate.  

At Zapolis & Associates PC, we are experienced in helping families understand the probate process and take appropriate steps to make sure everything goes as smoothly as possible. Whether you’re an executor needing legal guidance or a family member seeking clarity, we’re here to provide the support you need. Contact us today to set up a consultation and learn how we can guide you through the Illinois probate process. 

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