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Illinois Inheritance Laws

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In 2022, the circuit courts of Illinois closed more than 19,000 probate cases. Over 14,000 of these cases occurred before the start of the year, with the remainder taking place throughout 2022. Meanwhile, over 12,000 probate cases filed during the year remained open, and there were still over 58,000 open cases from 2021 or earlier.

The number of probate cases that remain open in Illinois sheds light on how potentially complex these legal affairs can be. When a person passes away, their surviving loved ones have to address various statutory matters before they receive their inheritance. These issues can catch people off guard, especially if they are not familiar with the requirements and guidelines involved.

In line with these concerns, this article provides readers with an in-depth overview of Illinois inheritance and probate laws. The goal is to help people understand the legal provisions they may face when a loved one passes away. This guide will also assist readers in finding help as they go through the probate process in Illinois.

What Happens if Someone Dies With a Will in Illinois?

When a person in Illinois dies, their property will be distributed among their relatives or beneficiaries using a valid will. In order to validate a will, the testator or person making the will must be at least 18 years of age. They must also be “of sound mind and memory,” which means they have the proper mental capacity to make the decisions for their will.

Furthermore, two or more credible witnesses must attest to the will as it is signed or acknowledged by the testator. In the event that a testator cannot physically sign the will, an assigned party may do so on their behalf. The witnesses must sign the will before the testator and confirm that the latter is of sound mind. However, a witness is not required to attest at the same time as another witness.

In accordance with Illinois’ inheritance laws, a chosen witness must not be an “interested person” or a direct beneficiary of the will. If an interested person is chosen as a witness, their right to inheritance will be declared invalid unless there are at least two other disinterested witnesses to the will.

Executors and Representatives

When a person dies in Illinois, whoever has their will must file it immediately. In most cases, the individual who has the will is the assigned executor. Secondary executors may also be designated in case the primary one is incapable of carrying out their role.

If the named executor cannot serve, the backup executor named in the will becomes the estate representative. If no executor or successor is willing to serve, a representative will be chosen by a party that has the right to do so under state law.

A potential representative must be:

  • At least 18 years old.

  • Of sound mind.

  • A resident of the United States.

  • Someone who has not been convicted of a felony.

If a potential representative fails to meet any of these criteria, they may not nominate a representative to act on their behalf.

The following individuals may be chosen as a representative based on the order of preference:

  • The decedent’s surviving spouse.

  • The legatees (those who receive a legacy under the will), with additional preference given to any legatees who are the decedent’s children.

  • The decedent’s children.

  • The decedent’s grandchildren.

  • The decedent’s parents.

  • The decedent’s siblings.

  • The decedent’s nearest kin.

Admitting the Will to Probate

Under Illinois law, an individual who seeks to have a will admitted to probate must submit a petition to the local circuit court. The petition must contain the information required by state law, including:

  • The testator’s name and place of residence at the time of their death.

  • The date and place of the testator’s death.

  • The date when the will was made.

  • The petitioner’s declaration of their belief that the will is the testator’s legitimate last will.

  • The estimated value of the testator’s real and personal estate within Illinois.

  • The names and post office addresses of the will’s beneficiaries, with minors or individuals with disabilities being specified.

  • The name and post office address of the executor.

Any interested party can also ask for a formal proof of will within a maximum of 42 days from the date when the will was admitted to probate. A court will schedule a hearing, during which the will’s proponent must prove its validity.

A will is considered invalid if there is evidence of compulsion, forgery, fraud, or other instances of improper conduct. When this happens, the court will vacate the order to admit the will to probate.

Illinois’ Probate Process

The probate process in Illinois officially begins upon a testator’s death. The assigned executor must file their will with the local circuit court in the county where the decedent lived. The maximum deadline given for the filing of a will is 30 days.

After an executor has been identified, the circuit court will name the testator’s heirs and issue a Petition for Letters of Office to formally appoint the executor. Once the will is filed, the executor must notify the beneficiaries or heirs about the probate proceedings within 14 days after the will’s admission to probate. They must also inform the testator’s known creditors.

If there are unknown creditors, a notice must be published in the local newspaper within 14 days. An unknown creditor is given up to six months to file a claim involving the decedent’s estate.

As part of their duties, an executor must catalog all of the assets in a decedent’s estate within 60 days from the date of their appointment. They will then be given six months to distribute the estate among the named beneficiaries and creditors. During this time, they may be required to use or sell assets to pay off the decedent’s debts and cover claims.

After this, the executor must submit a final accounting of how the decedent’s estate was handled before it is closed. They must also state how they plan to distribute the remainder of the decedent’s property. Moreover, they must obtain receipts from the beneficiaries who are able to receive assets.

The court will give a maximum of 14 months to have the decedent’s estate closed. This deadline begins counting down from the date when the will is admitted into probate. If the estate remains open beyond this deadline, the court may ask an executor or representative to specify why it is still open.

To learn more about other provisions or requirements involved in Illinois’ probate process, beneficiaries and representatives can hire a probate attorney for assistance.

Non-probate Assets

Certain assets or properties in Illinois are not required to go through the probate process. In general, they include:

  • Assets that have a designated beneficiary, such as life insurance policies.

  • Assets that are owned by the decedent and are transferred or paid to a beneficiary upon the former’s death.

  • Assets that are placed in a revocable living trust during the course of the decedent’s lifetime.

  • Any property owned through a tenancy by the entirety or a joint tenancy with a right of survivorship.

Contesting a Will

In Illinois, interested parties that wish to contest a will must do so within six months from the date when the will is admitted into probate. Furthermore, under the Illinois Probate Act, the right of an interested party to contest a will’s validity is passed on to the decedent’s heir, legatee, or representative.

Similarly, a person who seeks to contest the denial of a will’s admission to probate will be given six months to file their petition. When this happens, all of the testator’s legatees, representatives, and heirs must be included in the proceedings. Any of these parties may demand a trial by jury, where they can present evidence confirming or denying the will’s validity.

A will in Illinois can be contested on the following grounds:

  • There was undue influence that prevented the testator from stating how to distribute their estate in accordance with their wishes.

  • The testator lacked the mental capacity needed to create their will.

  • The testator was unable to read a will that was prepared for them, or the will’s contents have not been sufficiently explained to them.

  • There is evidence of fraud or forgery.

  • The will was revoked beforehand.

What Happens if Someone Dies Without a Will in Illinois?

If a person in Illinois dies without a will, they shall have their estate distributed among their beneficiaries in accordance with state law instead. This process is known as intestate succession.

Generally, a person’s closest relatives will be considered their beneficiaries if they die without a will. If a person who dies intestate does not have relatives, their assets and property will be given to the state. Like in probate proceedings for decedents with a will, the provisions for non-probate assets apply in intestate proceedings.

A deceased individual’s close relatives or friends may request to be assigned as the administrator of the former’s estate. Using a Petition for Letters of Administration, they must specify their name, their relationship to the decedent, and their request to be appointed. As an administrator, they will have the same duties as an executor. These include gathering assets and paying debts or claims.

Spousal Rights

In Illinois, the spouse of a decedent with no will is entitled to receive the entirety of the latter’s estate under intestate succession. However, if the couple has children, only half of the decedent’s estate will go to their spouse. The other half will then be divided equally among their children.

In addition, the spouse and their dependent children will be given monetary support from the decedent’s estate for up to nine months. There is a minimum support payment of $20,000 for the surviving spouse, as well as a minimum of $10,000 for each child they had together.

This support provision could apply even if the spouse and the decedent had been living apart for a long time before the latter’s death unless they had already legally separated or divorced.

Children’s Rights

If an intestate decedent had children but did not have a spouse, their children would receive equal shares of the estate. Generally, a decedent’s grandchildren will not receive property unless their parent dies before the decedent does. When this happens, they will receive their parent’s share of the decedent’s property.

For children other than a decedent’s direct descendants, Illinois has the following provisions:

Inheritor

Description

Posthumous children (those conceived before the decedent’s death and born after it)

Will receive a share

Adopted children

Will receive a share

Children born outside of marriage

Will receive a share only if the decedent acknowledged their paternity or if the court establishes it following their death

Children born through artificial insemination

Will receive a share only if the decedent agreed in writing to have their biological matter used and if the child in question was born within 36 months of their death

Foster children and stepchildren

Will receive a share only if they were legally adopted

Children placed for adoption

Will receive a share only if their decree of adoption allows them to keep their rights to inheritance; the rights of biological children adopted by the decedent’s spouse will be unaffected

The Rights of Other Surviving Relatives

The following describes the succession of intestate inheritance in descending order if a decedent has no spouse and children:

  • Parents (a single parent will receive twice their share).

  • Siblings and their descendants.

  • Grandparents and their descendants.

  • Great-grandparents and their descendants.

  • Next “kindred” related to the decedent.

Estates With No Heirs

If an intestate decedent has no distant or close relatives, real property from their estate will be given to the county where it is located. Any personal property will then be given to the state.

Unique Situations in Illinois’ Inheritance Law

For Noncitizens and Nonresidents

Under state law, a noncitizen in Illinois has the same rights to property as natural-born citizens. This means that if a noncitizen dies intestate, their property and assets will be distributed using the same provisions that apply to a natural-born citizen. Interested parties will also be entitled to their share of the noncitizen’s estate, even if they themselves are noncitizens.

In a similar vein, most of the laws that apply to domestic wills also govern foreign wills. However, there are special provisions involving foreign wills’ manner of proof, as follows:

Type of foreign will

Proof required

Wills admitted to probate outside of Illinois

An authenticated copy of the will and the probate

Wills from a state or country that has no laws requiring a will to be probated

A certificate from the will’s legal custodian verifying its authenticity and that it has become operative under the laws of the country or state it came from

Notarial wills from a state or country that requires them to remain in the custody of a notary

A copy of the will that is authenticated by the notary who has custody of it 

Meanwhile, the will of a testator who is not a resident of Illinois may still be admitted to probate in the state if either of the following provisions apply:

  • The will was admitted to probate outside of Illinois.

  • The will was executed outside of Illinois in accordance with the laws of the state, the place where it was executed, or the location of the testator’s permanent residence.

If a Decedent Was Killed by a Beneficiary

Illinois has a “slayer” statute that bars a person from inheriting part of an estate if they “intentionally” and “unjustifiably” killed the decedent. If the individual was made a beneficiary by the decedent prior to the latter’s death, the estate will be administered as if the former had died before the decedent.

However, the statute does not apply if the decedent’s death occurred through an accident, unless it was intentionally caused by the beneficiary. In addition, the statute will not apply in cases where the beneficiary killed the decedent in lawful self-defense.

Does Illinois Impose Inheritance and Estate Taxes?

While Illinois does not have inheritance tax regulations, it does impose an estate tax on properties worth at least $4 million. This tax must be paid to the State Treasurer before a decedent’s heirs can begin receiving their inheritance. Its rate increases up to 16% for everything that exceeds the first $4 million.

Heirs must also address the following after a decedent’s death:

  • Individual state and federal income tax returns.

  • Federal estate or trust income tax returns.

  • Federal estate tax returns (only for individual estates with gross assets and prior taxable gift values worth $12.92 billion as of 2023).

Legal Resources Related to Inheritance Law in Illinois

Residents of Illinois with probate-related concerns can refer to the following resources for information and potential assistance. Those who seek legal guidance may also approach a probate lawyer within the state for help.

Illinois Regional Archives Directory - Probate Division

The Regional Archives Directory’s Probate Division section on the Secretary of State’s website has a directory of informative resources related to probate documents and records. These include wills, guardian’s letters, heirship records, and probate dockets. Each resource provides users with a description of a specific document and the information it requires or has.

Illinois Legal Aid Online - Wills and Estates Resources

Illinois Legal Aid Online provides legal assistance to low-income people throughout the state. Its website has several resources that help users learn about estate planning, inheritance taxes, and probate actions. It also has programs that people can use to prepare related documents, such as small estate affidavits and powers of attorney. Users can send other inquiries to the ILAO staff through its website.

Illinois Nineteenth Judicial Circuit - Probate Court Handbook

The Probate Court Handbook, prepared by the Illinois Nineteenth Judicial Circuit, helps people learn about probate court processes and relevant terms. It offers a detailed explanation regarding the roles and duties of each party involved. Additionally, it has sections describing the process followed for the estates of minors or people with disabilities.

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