Is Probate Required in Illinois? Thresholds and Affidavit Options

Probate is required in Illinois in two situations: the deceased person owned real estate titled in their name alone, or their personal property (not counting vehicles registered with the Secretary of State) totals more than $150,000.¹ Estates that fall below both lines can usually be settled with a sworn affidavit and no court case at all. Having a will does not change this. A will controls how property is distributed, but it does not let the estate skip probate on its own.

The Two Triggers for Probate

The first trigger is real estate held in the decedent’s name only. If title has to move from the deceased owner to an heir or beneficiary, the court has to be involved. Value is irrelevant here. A small vacant lot triggers probate the same way a house does.

The second trigger is the size of the personal estate. Add up bank accounts, investment accounts, personal belongings, and other non-real-estate assets. Leave out any vehicles titled through the Secretary of State. If what remains is more than $150,000, probate is required.¹

A dispute can force the issue too. If someone contests the will’s validity, or the heirs cannot agree on how property should be handled, a judge has to resolve it, and that means opening an estate.

Assets That Don’t Count Toward the Threshold

Many assets pass to a new owner automatically at death and never enter the probate estate. These are also excluded when you calculate whether the $150,000 threshold has been crossed.

Property held in joint tenancy with right of survivorship goes to the surviving co-owner. Illinois requires the deed or account agreement to say expressly that ownership is joint tenancy, not tenancy in common.²
Life insurance, 401(k) plans, IRAs, and similar accounts with a named beneficiary pay out directly to that beneficiary.
Payable-on-death (POD) bank accounts and transfer-on-death (TOD) investment accounts transfer to the named person on the account holder’s death.
Assets held in a revocable living trust pass under the trust’s terms, handled by the successor trustee.

Keeping Real Estate Out of Probate

Because real estate is one of the two triggers, families often ask what can be done about a house. Illinois offers a specific tool called the Transfer on Death Instrument, or TODI. It is a recorded deed that names a beneficiary to receive the property at the owner’s death. The owner keeps full control while alive and can change or revoke the TODI at any time.³

The formalities matter. A TODI must meet the same requirements as a regular deed, be signed in front of two witnesses, be notarized, and be recorded with the county recorder before the owner dies. A signed but unrecorded TODI has no legal effect.³ Where a house was the only reason probate would have been needed, a properly recorded TODI removes that reason.

The Small Estate Affidavit

When an estate falls below both triggers, a small estate affidavit is the standard way to collect the property. Instead of opening a court case, an heir or family member prepares a sworn statement and presents it, along with a certified death certificate, to whoever is holding the assets. Banks, brokerages, and other institutions that receive a valid affidavit are required by statute to release the property, and the law protects them from liability when they do.¹

Two conditions have to be met at the same time. Personal property (again, excluding vehicles titled through the Secretary of State) cannot exceed $150,000, and the decedent cannot have owned real estate in their name alone at death. Real estate that already passed by joint tenancy or a recorded TODI does not disqualify the estate, because that property moved outside probate on its own.

The affidavit lists every asset and its fair market value, every known debt including funeral expenses, and every heir or beneficiary with the share each is entitled to receive. If there is a will, distribution follows the will; if not, it follows Illinois intestacy rules. The affiant signs under oath before a notary.

Signing carries real exposure. The affiant agrees to indemnify creditors, heirs, and institutions that rely on the affidavit for any losses caused by errors, and the statement is made under penalty of perjury. Valid debts must be paid before anything is distributed to heirs. Getting the order wrong means personal financial responsibility.¹

Vehicles

Titled vehicles are excluded from the $150,000 calculation, but the title still has to move. If the vehicle was in the decedent’s name alone and no probate is being opened, a small estate affidavit can be presented directly to the Secretary of State. It has to describe the vehicle by year, make, and VIN, and it is submitted along with the original title, a death certificate, an application for a new title, and the required fees. A certified copy of the will is also required if the decedent left one.⁴

Summary Administration for Slightly Larger Estates

Summary administration is a simplified court process that fits between the affidavit and a full probate case. It can work when the estate needs some judicial oversight but the family wants to avoid full administration.

The gross value of all real and personal property subject to administration in Illinois cannot exceed $100,000. Every heir and beneficiary has to consent in writing. No unpaid claims can be outstanding, and any estate taxes must be paid or provided for. Each person receiving a distribution posts a bond equal to the value of their share, guaranteeing they will refund their proportionate part if a valid claim shows up later. The petitioner also has to publish notice of the petition and hearing so unknown creditors can appear.⁵ One objecting heir takes this option off the table.

When Probate Is Required: Independent Administration

If the estate has to go through probate, most Illinois estates use independent administration instead of court-supervised probate. The executor or administrator handles the estate without needing a court order for each decision.⁶

An independent representative can sell or lease property, borrow money, pay debts, settle claims, hire professionals, continue the decedent’s business, and distribute assets, all without filing motions or waiting for approval. The representative still has to act reasonably and in the estate’s best interests, and any interested person can ask the court to intervene if something looks wrong. In practice, this avoids the repeated hearings that make supervised probate slow and expensive. Independent administration is available with or without a will, and the executor requests it in the initial petition to open the estate. If no one objects, the court usually grants it.

The 30-Day Deadline for Filing the Will

One deadline applies no matter which path fits the estate. Anyone holding a deceased person’s original will has to file it with the circuit court clerk in the county where the decedent lived within 30 days of learning about the death.⁷ Holding onto a will, even with no bad intent, violates this rule. Filing the will is a separate obligation from opening probate, and it applies whether the estate ends up in court or is settled by affidavit.

1
Illinois General Assembly. Illinois Code 755 ILCS 5/25-1 – Payment or Delivery of Small Estate of Decedent Upon Affidavit
2
Justia. Illinois Code 765 ILCS 1005 – Joint Tenancy Act
3
Illinois General Assembly. Illinois Code 755 ILCS 27 – Real Property Transfer on Death Instrument Act
4
Legal Information Institute (LII) / Cornell Law School. Illinois Administrative Code Title 92 Section 1010.150 – Transferring Certificates of Title Upon the Owners Death
5
Illinois General Assembly. Illinois Code 755 ILCS 5 – Probate Act of 1975, Article IX
6
Illinois General Assembly. Illinois Code 755 ILCS 5/28-1 – Purpose and Scope of Article
7
19th Judicial Circuit Court. Probate Court Handbook