Detailed Answer
If a parent’s will names one child as the personal representative (often called the executor) but that child refuses or is unable to serve, you can still be appointed by the probate court. Under Illinois law, the court uses the probate process to issue “letters” (letters testamentary or letters of office) to the person entitled to administer the estate. The controlling rules are in the Illinois Probate Act (755 ILCS 5), which explains nomination, renunciation, appointment, and priority for appointment. See the Probate Act at the Illinois General Assembly site: 755 ILCS 5 (Probate Act of 1975).
Below is a clear, practical path you can follow in a common fact pattern: a parent died leaving a valid will that names your sibling as the executor, but the sibling refuses to serve and you want to be appointed.
- Confirm the refusal (get it in writing). Ask the sibling to sign a short written renunciation or refusal to act. A written renunciation, signed and ideally notarized, speeds the court process and avoids unnecessary hearings. If the sibling will not provide a written renunciation, the court can still proceed, but you should be prepared to show evidence (emails, text messages, a sworn statement) that the named executor will not serve.
- Identify the correct type of petition to file. If there is a valid will, file a petition for letters testamentary (sometimes called petition for probate and appointment of personal representative). If the named executor renounces or is disqualified, courts will appoint another person following the statutory priority rules. You file the petition in the probate division of the circuit court where the decedent lived.
- Show your eligibility and priority. When a nominated executor declines to serve, Illinois courts appoint another person according to statute and case law. The court will favor people with a direct interest in the estate (for example, a surviving spouse, devisees named in the will, adult children, or other heirs). If you are a beneficiary named in the will or otherwise have priority (for example, you are a child of the decedent), point that out in your petition and explain that the nominated executor has declined.
- File required documents. Typical filings include the original will (or a copy if the original cannot be produced), a certified death certificate, a petition for probate/appointment, an inventory or preliminary list of estate assets (as required later), and notices to interested parties. The court will set a date for hearing or will admit the will to probate administratively depending on local procedures.
- Obtain consents or waivers when possible. If all interested parties (beneficiaries and heirs) agree that you should serve, file written consents or waivers along with the petition. Unanimous consent can make the court’s appointment routine and can permit the court to waive formalities (and sometimes a surety bond).
- Handling bond requirements. Illinois courts often require a fiduciary bond unless the will waives bond (a common provision). If the will waives bond in favor of the nominated executor, the court will consider whether that waiver extends to the successor. Even if the will does not waive bond, beneficiaries can ask the court to waive or reduce the bond. Discuss bond options with the clerk or an attorney.
- If others object, expect a hearing. If another person contests your appointment, the court will schedule a hearing. At that hearing the court will consider the priority rules, any evidence of incapacity or disqualification, and whether appointment of you as personal representative serves the estate’s best interests.
- After appointment: letters and duties. If the court appoints you, the clerk issues letters testamentary (if serving under the will) or letters of office. Those letters give you authority to collect assets, pay debts and taxes, and distribute property under the will. Keep records and follow the reporting and inventory rules in the Probate Act and local court rules.
Hypothetical example: A decedent’s will names Sibling A as executor. Sibling A tells family they will not serve and signs a short written renunciation. You (Sibling B) are a beneficiary and want to administer the estate. You file a petition in the decedent’s local probate court attaching the original will, the death certificate, Sibling A’s renunciation, and a short statement of your interest. Because the nominated executor has renounced and there are no objections, the court issues letters testamentary to you and you proceed as personal representative.
Where to find forms and court rules: the Illinois courts maintain local probate procedures and some statewide forms. The statewide courts site is illinoiscourts.gov. For statutory detail consult the Probate Act at the Illinois General Assembly: 755 ILCS 5.
Helpful Hints
- Get a written renunciation from the named executor. That is the single most helpful document to avoid delay.
- Locate the original will if possible. Courts prefer originals; if lost, be ready to explain and attach a sworn statement and search efforts.
- Obtain several certified copies of the death certificate early. Banks and other institutions usually require them.
- Talk to other beneficiaries before filing. Written consent from beneficiaries can speed appointment and reduce bond requirements.
- Check the will for a bond waiver. If the will waives bond for a nominated executor, bring that to the court’s attention when asking to be appointed.
- File in the county where the decedent was domiciled at death. If you’re unsure which county, check official records or contact the clerk’s office for guidance.
- If the sibling refuses but still controls important information (passwords, keys, safe deposit boxes), ask the court for protective orders or temporary relief—especially if estate assets are at risk.
- Retain a probate attorney if the estate is large, has real estate, business interests, tax issues, or if someone contests the appointment. Even a short consultation can avoid mistakes that cost time and money.
- Keep good records. As personal representative you must account for receipts, expenses, and distributions—good records prevent disputes later.
- Expect some delays. Probate can take months; complex estates take longer. Plan for at least several months in straightforward cases.