The following procedures are used, depending on the type of probate required.
Small Estates with Personal Estate of $100,000.00 or Less.
When any person or corporation (1) indebted to or holding the personal estate of a
decedent, (2) controlling the right of access to a decedent’s safe-deposit box, or (3) acting
as registrar or transfer agent of any evidence of interest, indebtedness, property or right is
furnished with a small estate affidavit in substantially the form set out in the statute, the
person or corporation must pay the indebtedness, grant access to the safe-deposit box,
deliver the personal estate or transfer or issue the evidence of interest, indebtedness,
property or right to the persons and in the manner specified in paragraph 11 of the affidavit
or to an agent appointed in the manner described. 755 ILCS 5/25-1.
If safe-deposit access is involved or if sale of any personal property is desirable to
facilitate distribution under a small estate affidavit, all persons named in paragraph 11 of the
small estate affidavit (except minors and unascertained or disabled persons) may in writing
appoint one or more persons as their agent for that purpose. The agent may, without court
approval, gain access to, sell, and distribute the property for the benefit of all persons
named in paragraph 11 of the affidavit; and the payment, delivery, transfer, access or
issuance shall be made or granted to or on the order of the agent. 755 ILCS 5/25-1(c).
Administrator to Collect—When Appointed.
A court may issue letter of administration to collect when (1) a contingency happens that
produces delay in the issuance of other letters of office and it appears to the court that the
estate of the decedent is liable to waste, loss, or embezzlement, or (2) a person is missing
from his or her usual place of residence and cannot be located or while in military service is
reported missing or missing in action. Issuance of such letters may result form the filing of a
petition of any interested person or upon the court’s own motion. 755 ILCS 5/10-1(a).
One must be qualified to act as an administrator. 755 ILCS 5/10-1(a). The court has
discretion to select an administrator, giving due consideration to any person named in the
will, or, absent a will, to preferences stated in 755 ILCS 5/9-3. The administrator to collect’s
authority continues only until the appointment of an executor or an administrator. Freilich v.
Wener, 188 Ill. App. 577 (1914), affd Jacob Wener & Co. v. Freilich, 268 Ill. 58, 108 NE 711
Steps For Court Appointment of An Executor Nominated In A Will:
1. File the will with the clerk of the court. Illinois Probate Act, 755 ILCS 5/6-1. Any person
who willfully alters, destroys, or secretes a will for a period of 30 days after the death of the
testator shall be sentenced to punishment in accordance with that inflicted in cases of theft
of property worth more than $150.
a. Petition for probate of will and for letters testamentary (755 ILCS 5/6-2);
(1). The petition must be filed in the proper county and must state, if known:
(a). the name and place of residence of the testator at the time of his
or her death;
(b). the date and place of death;
(c). the date of the will and the fact that petitioner believes the will to
be the valid last will of the testator;
(d). the approximate value of the testator’s real and personal estate
in this state;
(e). the names and post office addresses of all heirs and legatees of
the testator and whether any of them is a minor or disabled person;
(f). the names and post office address of the executor; and
(g). unless supervised administration is requested, the name and
address of any personal fiduciary acting or designated to act.
(2). When the will creates or adds to a trust and the petition states the
name and address of the trustee, the petition need not state the name and
address of any beneficiary of the trust who is not an heir or legatee.
(3). If letters of administration with the will annexed are sought, the petition
must also state, if known:
(a). the reason for the issuance of the letters,
(b). facts showing the right of the petitioner to act as, or to nominate,
the administrator with the will annexed,
(c). the name and post office address of the person nominated and
of each person entitled either to administer or to nominate a person to
administer equally with or in preference to the petitioner, and
(d). if the will has been previously admitted to probate, the date of
(4). If a petition for letters of administration with the will annexed states that
there are one or more persons entitled to either administer or to nominate a
person to administer equally with or in preference to the petitioner, the
petitioner must mail a copy of the petition to each such person as provided in
755 ILCS 5/9 and file proof of mailing with the clerk of the court. 755 ILCS 5/6-2.
b. In Cook County, affidavit of petitioner or attorney that an attached facsimile of 3. The estate should be initiated by filing with the clerk of the court the petition for the
will, and all codicils, is a copy of the will and all codicils to be admitted (check local
rules in other circuits);
c. Executor’s oath and individual (nonsurety) or surety bond (755 ILCS 5/12-1
d. Nonresident executor’s designation of resident agent to accept service of
process, notice, or demand (755 ILCS 5/1-11);
e. Acceptance by corporate executor (755 ILCS 5/12-1);
f. Affidavit of military service, if any heirs, legatees, or devisees are in military
service (50 U.S.C. app. §520, et seq.);
g. Affidavit of heirship if heirship is to be proved in this manner rather than by oral
testimony and, in either case, an order declaring heirship (755 ILCS 5/3);
h. Order appointing or waiving appointment of guardian ad litem, if appropriate
(755 ILCS 5/3);
i. Waiver of notice in connection with admission of will and rights under
independent administration, if appropriate, which may be filed by persons under no
disability (notice following entry of order admitting or denying admittance of will need
not be mailed to persons filing this waiver or who personally appeared at the initial
hearing (755 ILCS 5/6-4);
j. Affidavit of attesting witnesses to will when will does not have proper attestation
clause or affidavit (755 ILCS 5/6-4);
k. When will must be proved by testimony and when witness to will resides outside
county or is unable to attend court, petition for deposition of witness, commission, and
written interrogatories to accompany commission (755 ILCS 5/6-5);
l. If necessary, subpoena to witness to will (755 ILCS 5/6-17);
m. Order admitting will to probate.
n. Order appointing personal representative, and, when supervised
administration is elected, setting date for filing of inventory;
o. In Cook County, designation of newspaper in which required notices are to be
p. Notice to heirs and legatees and to unknown heirs of their rights to require
formal proof of will and to contest admission of will to probate and of their rights as to
independent administration (755 ILCS 5/6-10).
probate of the will and by paying the clerk’s fees. In Cook County a hearing date is set to
open the estate.
4. Heirship can be proved by affidavit, by testimony in open court, or by deposition. In
Cook County, if no heirs are listed in the petition for letters, notice of the hearing on heirship
must be given to the state’s attorney.
5. A personal fiduciary or guardian ad litem should be appointed for minors or
incompetent heirs and legatees. (755 ILCS 5/6-12).
6. The will must be proved by a proper attestation clause, an affidavit, by testimony of
the witnesses, or by their deposition.
7. Publication for claims must be arranged.
8. Publication of notice of the order admitting or denying the will to probate and
appointing a representative may be required and, if so, must be arranged.