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Introduction to Probate Court in Illinois

by Kevin Williams on Oct. 02, 2013

Estate Wills & Probate Divorce & Family Law  Family Law 

Summary: This article provides a brief summary of the probate and guardianship court in Illinois.

In Illinois, the local probate court generally handles two main areas of the law:  decedent estate administration (commonly referred to as “probate”) and guardianship.  The probate court also handles any contested issues related to these areas. 

The Probate Process

Probate is the legal court process of administering the estate of a deceased person.  This is done by resolving all claims related to the estate and by distributing the deceased person's property under a valid will or under the Intestacy laws of the State of Illinois. 

The routine administration of an Illinois Probate Estate involves several steps.  First, a Petition must be filed with the Probate Court and an Estate opened.  At the hearing on the original Petition to open the estate, the Court will typically appoint a representative to manage the business of the Estate.  If the Court appoints the individual named in the Will, the individual is known as an “Executor”.  If no Will exists, the representative appointed by the Court is known as an “Administrator”.  Once the Estate is opened, notice must be sent to all interested parties of the Court proceedings (if notice has not already been sent prior to opening the Estate). [1]

Next, the Court will issue a document called a "Letters of Office", which effectively empowers the Estate representative to conduct all business on behalf of the Estate.  The Estate representative will then collect and inventory all of the Estate assets and pay the legitimate final debts of the decedent.  Once these debts have been paid according to their priority under the Probate Act, the representative will distribute the remaining assets to the proper beneficiaries of the Estate (to the legatees listed in the decedent's Will, or in the absence of a Will, to the heirs listed under the Illinois Intestacy laws).[2] 

 

Finally, the Estate representative prepares a Final Report and Final Accounting of all Estate activity and obtains approval from the beneficiaries regarding the Estate administration.  Once this is done, the representative can then petition the Court to close the Estate.[3]

  

When is Probate needed in Illinois?

The formal Illinois Probate court process of administering an estate is generally only necessary when the value of the personal estate exceeds $100,000.00, or when the estate contains real estate needing to be administered.  When an estate is under the $100,000.00 threshold and no real estate is involved, it can typically be handled out of court using an Illinois Small Estate Affidavit form.[4]

It is also important to note that any property held jointly with a surviving owner, or any account naming a living individual as a beneficiary, does not pass through a deceased individual's probate estate.

 

The Guardianship Process

Guardianship is the process by which a court finds an individual mentally incompetent and appoints a legal guardian to be responsible for the personal and/or financial decisions of the mentally disabled individual.

 

In order to set up a guardianship in Illinois, there are several steps that need to be done.  First, the alleged disabled person should be seen by his/her attending physician to determine the level of incompetency.[5]  Next, a petition for Guardianship will need to be filed in the proper Guardianship Court and a return date set for an initial hearing.[6]  Then, the alleged disabled person will need to be served by a process server (usually the county sheriff’s office) in order for the Guardianship Court to have personal jurisdiction over the alleged disabled person.[7] 

 

Once proper service on the alleged disabled person has been done, notice of the petition for Guardianship will need to be sent to all interested parties as defined by the Illinois Probate Act.  Also, a Guardian Ad Litem may need to be appointed to interview the relevant parties and make recommendations to the Court regarding the Guardianship.[8]  

 

Finally, the Court will hold a hearing to determine the alleged disabled person’s mental incompetency.  If the Court finds the individual incompetent, it will appoint the best interested party to serve as the disabled person’s guardian.[9]  In the absence of any qualified family or friends who are both willing and able to serve as the guardian, the Court will appoint the county’s Public Guardian as the guardian for the disabled individual. 

 

All of these steps will typically take at least a few months.  If an emergency Guardianship situation exists, the Court can appoint a Temporary Guardian for up to 60 days while the Court considers the situation.[10]  Also, if there is a dispute among the interested parties to the Guardianship about who should serve as the Guardian, litigation will likely commence to determine who should be the Guardian. 

 

Two Kinds of Guardianships in Illinois

In Illinois, there are two basic types of guardianships:  guardianship of the person and guardianship of the estate.[11]  A guardianship judge will appoint a guardian of the person to care for and protect the disabled person's personal needs, such as medical decisions and day-to-day personal decisions.  A judge will appoint a guardian of the estate to care for and protect the disabled person's financial needs, such as managing the personal finances.  Typically, the same person will serve as the guardian of the person and the estate. 

 

In order to avoid the guardianship process, an individual can include a Power of Attorney for Health Care and Property in his/her estate plan.  The Power of Attorney for Health Care grants the named Agent similar powers to the guardian of the person, and the Power of Attorney for Property grants the named Agent similar powers to the guardian of the estate.  Thus, durable Powers of Attorney for Health Care and Property are important documents in a complete estate plan.  However, in the absence of Powers of Attorney, the guardianship process is the necessary default system.  

 

The Role of the Guardian

The specific types of decisions that a guardian might make on behalf of the mentally disabled person include:

  • Medical decisions regarding treatment and care
  • Daily personal decisions, such as food, clothing, housing, transportation, medications, and entertainment
  • Arranging for the liquidation of non-liquid assets, such as real estate
  • Managing the personal bank accounts and finances

An Illinois guardianship requires a guardian to act in the place of the disabled individual and to protect the disabled individual's interests.  A court appoints a guardian when an alleged disabled person is judged to be partially or completely incapacitated and cannot make decisions for him/herself because of a mental disability.[12]   A court can also appoint a guardian for a minor who has received a large dollar amount settlement.[13]

  

How does a court select a guardian?

One of the most important steps in setting up a guardianship is selecting the proper individual to serve as guardian for the disabled person.  Those individuals with direct ties to the disabled person are preferred as possible guardians by the courts. These include:

  • A person designated by the disabled individual to handle his/her affairs before the period of incapacity occurred
  • The disabled person's spouse
  • The disabled person's children
  • Parent(s) or another relative
  • A private individual, such as a friend or neighbor, who is familiar with the disabled individual and the incapacity at issue

The individual chosen by the court to act as the guardian must be both willing and able to perform the necessary duties as guardian of the disabled person.  The court will also consider the potential guardian's character, background, and physical health, among other factors.[14] 

 

Conclusion

Because of the inherent complexities involved with the administration of property upon a person’s mental disability or death, the local probate courts in Illinois are critical in the settlement of these estates.  In handling both the routine and contested matters in probate law, the probate courts serve a vital role in the overall legal system in Illinois.



[1] 755 ILCS 5/9-5

[2] 755 ILCS 5/28

[3] Id.

[4] 755 ILCS 5/25-1

[5] 755 ILCS 5/11a.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] 755 ICLS 5/11

[14] 755 ICLS 11a.

 

 

 

 

Bio

 

Kevin E. Williams is a solo practitioner in Aurora, IL.  Kevin concentrates his practice in the areas of guardianship and probate.  He also handles litigation in these areas.  Kevin handles cases in Kane, DuPage, Kendall, Will, and Cook Counties.  He earned his Juris Doctorate from the University of Dayton, School of Law in May 2006, and obtained a B.S. in Finance from Butler University in 2003.  Kevin enjoys playing basketball and spending time with his wife and two kids.  Kevin can be reached via telephone at (630) 898-4789 and via email at kevin@kevinwilliamslaw.com.

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