The Illinois Probate Act, codified at 755 ILCS 5, sets the rules for administering a deceased person’s estate: proving a will, appointing an executor or administrator, paying debts and taxes, and distributing what remains to heirs or beneficiaries. Formal probate takes place in the circuit court of the county where the decedent lived, but the Act also provides a small-estate shortcut and recognizes several categories of property that transfer at death without any court involvement. What follows walks through how the process actually works, what the deadlines are, and where the Act gives heirs, spouses, and creditors specific rights.
What Probate Covers and What Skips It
Probate applies to assets the decedent owned individually at death with no built-in transfer mechanism. Real estate titled solely in the decedent’s name, personal bank accounts without a payable-on-death designation, vehicles, and tangible items like furniture and jewelry typically pass through probate. The court oversees identification and valuation of those assets, payment of debts and taxes, and final distribution.
Several common asset types bypass probate entirely because ownership transfers automatically:
- Property held in joint tenancy with right of survivorship passes directly to the surviving owner.
- Life insurance, retirement accounts such as 401(k)s and IRAs, and payable-on-death bank accounts go to the named beneficiary regardless of what the will says.
- Illinois lets a property owner record a transfer-on-death instrument that passes real estate to a named beneficiary at death; the owner keeps full control during their lifetime and can revoke the instrument at any time.1Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 27 – Real Property Transfer on Death Instrument Act
- Assets titled in a revocable living trust are distributed by the trustee according to the trust, outside of probate.
If nearly everything the decedent owned had a beneficiary designation, a survivorship feature, or lived in a trust, there may be little or nothing for the probate court to handle.
Who Inherits When There Is No Will
When someone dies without a valid will, Illinois intestacy law decides who inherits, and the result depends on which relatives survive. If the decedent leaves a spouse and one or more descendants (children, grandchildren, and so on), the spouse takes half the estate and the descendants split the other half, with shares for a deceased child passing to that child’s own children.2Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/2-1 – Rules of Descent and Distribution
A surviving spouse with no descendants inherits everything. Descendants with no surviving spouse take everything, divided equally. Without a spouse or descendants, the estate moves to parents, then siblings, and further out through the statute. If no qualifying relative can be found, the estate goes to the State of Illinois.
The half-and-half split with a spouse and children surprises people. Many assume the spouse takes everything by default. Under the Act, children are entitled to their share, and that can force the sale of a home or other assets the spouse expected to keep. It is one of the strongest practical arguments for having a will.
Independent vs. Supervised Administration
Illinois offers two tracks for formal probate. The choice shapes how much the court is involved and how much the estate spends on legal fees.
Independent Administration
Independent administration is the default and by far the more common track. The personal representative can sell property, pay debts, and make distributions without filing motions for each action. Any interested party can object, and the court can terminate independent administration if problems appear, but absent objections the process runs with minimal court supervision. The representative does not file the inventory with the court under this track; instead, they mail or deliver a copy to each interested person.3Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/28-6 – Service of Inventory If a surety bond is in place, the bonding company also gets a copy within 90 days of the representative receiving letters of office.
Supervised Administration
Supervised administration puts the court in the middle of nearly every significant decision. Sales of property, distributions, and other major actions all require court approval. This track is typically used when beneficiaries are in conflict, the assets are unusually complex, or there are real concerns about the representative’s ability to manage the estate. Court hearings take time and legal fees add up, but for contentious estates the added oversight can head off more expensive litigation later.
The Small Estate Affidavit
Not every estate needs formal probate. If the decedent’s personal property (excluding motor vehicles registered with the Secretary of State) totals $150,000 or less, a small estate affidavit can be used to transfer those assets without opening a probate case.4Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/25-1 – Small Estate Affidavit The person entitled to the property presents the affidavit directly to banks, employers, or other holders, and the statute authorizes them to release the assets.
A small estate affidavit cannot transfer real estate. It also cannot be used if letters of office have already been issued or a probate petition is pending. Motor vehicles get separate treatment and can be transferred through the affidavit process regardless of the dollar threshold, following Secretary of State procedures. If real property already passed outside probate through a transfer-on-death instrument or joint tenancy, the remaining personal property can still qualify as long as it falls under the limit.
Opening the Estate and the Duty to File the Will
Probate begins when someone files a petition in the circuit court of the county where the decedent lived. If the decedent left a will, whoever has it has a legal duty to file it with the court clerk immediately after learning of the death.5Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/6-1 – Duty to File Will Deliberately hiding or destroying a will can lead to felony charges. Concealing a will for more than 30 days after learning the testator has died is a Class 3 felony in Illinois.
The court reviews the will’s validity and appoints a personal representative. If the will names an executor who is willing and able to serve, that person generally receives the appointment. Without a will, or if the named executor cannot serve, the court appoints an administrator, usually a close relative. The Act requires the representative to be at least 18, mentally competent, and not a convicted felon.
In many cases the court requires a surety bond, which acts as a financial guarantee against mismanagement. A well-drafted will can waive the bond requirement and save the estate the premium.
What the Personal Representative Has to Do
The job is demanding. It starts with identifying and securing every asset the decedent owned: bank and investment accounts, household items, vehicles, and real estate. The representative compiles an inventory with appraised values and makes sure nothing is lost, damaged, or taken while the estate is open.
From there, the representative pays legitimate debts, handles tax filings, and eventually distributes what remains. The Act requires debts and taxes to be paid before any distributions to heirs. If the estate does not have enough cash, the representative may need to sell property to cover obligations. Throughout, the representative acts as a fiduciary, putting the estate’s interests ahead of their own and avoiding self-dealing.
Record-keeping is not optional. Every dollar in and out must be documented: income, expenses, sales, and payments. Before the estate can be closed, the representative files a final accounting that heirs and beneficiaries can review. Courts take this accountability seriously, and sloppy records are one of the fastest ways to get removed.
Compensation
Illinois does not set a fixed percentage. The representative is entitled to reasonable compensation, and the probate attorney’s fee is also governed by a reasonableness standard.6Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/27-2 – Attorney Fees Courts weigh the size and complexity of the estate, time spent, and skill required. Beneficiaries who think the fees are excessive can ask the court to reduce them. A will can specify compensation, and courts generally honor those terms unless the result is unreasonable.
Notifying Creditors and Paying Claims
The representative must publish notice to creditors once a week for three consecutive weeks in a newspaper in the county where the estate is being administered.7Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5 – Probate Act of 1975, Article XVIII Claims Against Estates Known creditors also get individual notice by mail or delivery.
The published notice sets a claims deadline of at least six months from first publication, or three months from mailing, whichever is later. Creditors who miss the deadline are barred. That protects both the representative and the heirs, so getting the publication and mailing right matters; errors can reopen claims that should have been closed off.
Claims are paid in the priority order the Act establishes. Administration expenses come first, then the surviving spouse’s and children’s awards, then funeral costs, and then general creditor claims. If the estate is short, lower-priority creditors take a partial payment or nothing.
Rights of Heirs and the Surviving Spouse’s Award
Heirs and beneficiaries are not passive during probate. The Act gives them the right to notice when the estate is opened, an accurate accounting of assets and expenditures, and the ability to challenge the representative’s actions in court. A beneficiary who believes the representative is mismanaging the estate can petition for intervention, including a switch to supervised administration or outright removal.
Illinois also provides a mandatory award to the surviving spouse that takes priority over almost all other claims. It is intended to support the spouse for nine months after the decedent’s death, and the minimum is $20,000.8Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5 – Probate Act of 1975, Article XV Awards and Payments If the spouse has minor children living with them at the time of death, the award increases by at least $10,000 per child. The court can set a higher award based on the family’s needs and the estate’s size.
The award is not the same as an inheritance. It comes off the top of the estate before debts and distributions, and even when the estate is insolvent it is protected from most creditor claims. For smaller estates, it can consume a significant share of the total.
Estate Taxes in Illinois
Estate administration can trigger tax obligations at both the federal and state level, and the representative is responsible for filing returns and paying any tax owed before distributing assets.
The federal estate tax applies only to estates exceeding the basic exclusion amount, which for deaths in 2026 is $15,000,000.9Internal Revenue Service. What’s New – Estate and Gift Tax The elevated threshold, enacted by the One, Big, Beautiful Bill signed in July 2025, means the vast majority of estates owe no federal estate tax. Married couples can effectively shelter up to $30,000,000 combined through portability of the unused exclusion.
Illinois imposes its own estate tax with a much lower threshold. Estates with a gross value exceeding $4,000,000 must file an Illinois estate tax return.10Illinois Attorney General. Important Notice Regarding Illinois Estate Tax and Fact Sheet Because that threshold is far below the federal exemption, many Illinois estates that owe nothing to the IRS still owe state estate tax. The Illinois tax is graduated, with rates reaching up to 16% on the largest estates.
Separately, an estate that earns income during administration (interest, dividends, rent, capital gains from asset sales) must file a federal fiduciary income tax return on Form 1041, along with a corresponding Illinois return.11Internal Revenue Service. Instructions for Form 1041 The representative is personally liable for taxes that should have been paid from the estate but were not.
Contesting a Will
Anyone with a direct financial interest in the estate can challenge a will. Common grounds are undue influence (someone pressured the testator into signing), lack of testamentary capacity (the testator did not understand what they were signing), fraud, and forgery.12Illinois Courts. Illinois Pattern Jury Instructions – Civil – 200.00 Will Content The challenger carries the burden of proving the will invalid.
The deadline is strict. A will contest must be filed within six months after the will is admitted to probate.13Illinois General Assembly. Illinois Compiled Statutes 755 ILCS 5/8-1 – Contest of Admission of Will to Probate The same six months applies to contesting a revocable trust that receives assets under the will. Miss the window and the challenge is barred, no matter how strong the evidence.
Contests are expensive and draining. They involve discovery, depositions of witnesses to the signing, medical records if capacity is in play, and often a trial. Courts are reluctant to override a decedent’s expressed wishes, and the evidentiary bar is high. For a potential challenger, the practical point is to talk to a probate litigator early, because that six-month clock runs whether you are ready or not.