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Filing a Will in Illinois Probate Courts
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Under Illinois Probate Law, a will must be filed with the Probate Court County Clerk "immediately," which is generally interpreted to mean within 30 days of the testator's death. The testator is the person whose property the will disposes of. Anyone who possesses the will has the duty to file the will with the court. If the person in possession refuses to file the will, the court or any interested parties (anyone who stands to take some of the testator's property under the terms of the will) can compel them do so through appropriate motions filed with the probate court.
Once the will is filed with the probate court, it is kept there and is available for view and copying by the public. If someone tells you that they have filed a will you simply need to go to the courthouse in the county where it was filed and you can look at it.
Some times people are supposed to file a will, but fail to do so for any number of reasons. Possessing a will with the intent to conceal, alter, or destroy the will without the instruction of the testator (the person who has passed away) for a period of 30 days after learning of the testator's death is a crime. Upon conviction, a person guilty of any such act will be charged with a Class 3 felony and sentenced by the law for other theft of property offenses. testator's death is a crime. Upon conviction, a person guilty of any such act will be charged with a Class 3 felony and sentenced by the law for other theft of property offenses.
Although Illinois law requires filing of a will within 30 days of the testator's death, in practice, wills are often be filed beyond this period and then properly probated. However, if the will is not properly filed within 30 days of the testator's death, family members may proceed as if the deceased person died without ever making a will. When a person dies without leaving a valid will disposing of all of his estate, he is said to have died intestate. When a person dies intestate, the provisions of the Illinois Probate Code designated who inherits what property. For example, if a man dies intestate and is survived by his wife and two children, his wife will take half of his estate, and his children will each take a quarter of the estate. Intestacy rules become more complicated as more descendants become involved, hence it is important to contact an attorney.
When a person dies intestate, the provisions of the Illinois Probate Code designated who inherits what property. For example, if a man dies intestate and is survived by his wife and two children, his wife will take half of his estate, and his children will each take a quarter of the estate.
Once a will has been filed in probate court, it will be a minimum of six months before it is approved and assets can be distributed. In the meantime, the executor of the estate can, with the court's permission, begin to sell some of the assets that are part of the estate and pay off bills or other debts. While there is a six month minimum for probate court approval, it is not unusual for the probate process to take more than one year.
Finally, just because a will is filed does not mean that it is valid. If you don't believe that the person who died was mentally competent when they signed the will, believe that the will is a fraud or have proof that the will was made invalid by the making of a new will, you may be able to challenge the will. In our years of running this service, we have seen numerous successful challenges to wills.
Dealing with a probate court in Illinois can be straight forward and at times can be really confusing. It is usually not too expensive to retain an attorney and in most instances the attorney's fees can be paid out of the assets from the estate. If you are trying to enforce a will we strongly suggest that you retain an attorney. If you have any questions you can contact us.