If someone dies without a valid will in Illinois, families frequently need to know whether they must open a probate case to handle the estate. The answer depends on what assets the decedent owned, how those assets were titled, the size of the estate, and whether creditors or heirs dispute the distribution.
Detailed Answer
Basic rule: Under Illinois law (the Probate Act of 1975, 755 ILCS 5), a person who dies without a will is intestate. Generally, intestate estates must go through probate administration so a court can appoint an administrator, allow creditors to file claims, settle debts, and distribute remaining property to heirs according to the statutory intestacy rules.
Key points to understand:
- What probate does: Probate is the court-supervised process that (1) proves the decedent’s ownership of assets, (2) collects and values estate assets, (3) notifies and pays valid creditors and taxes, and (4) distributes remaining property to heirs.
- Who manages an intestate estate: When there is no will, the court appoints an administrator (sometimes called an administrator with the will annexed if a will is later found). Priority for appointment and duties are set out in the Probate Act of 1975 (see the Illinois Probate Act, 755 ILCS 5: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2106&ChapterID=60).
- Assets that often avoid probate: Some property passes outside probate by operation of law. Common non-probate transfers include property held in joint tenancy with right of survivorship, accounts with payable-on-death (POD) or transfer-on-death (TOD) designations, life insurance or retirement plans with named beneficiaries, and certain trust assets. Because these pass directly to the surviving owner or beneficiary, the probate court normally does not control them.
- Small estate procedures: Illinois provides simplified procedures for small estates that may avoid full formal probate. These summary remedies and small-estate affidavit procedures are part of the Probate Act (see 755 ILCS 5, including the small estate provisions). Whether you qualify for a summary remedy depends on the type of property and statutory limits, so you should consult the statute or a lawyer for current thresholds: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2106&ChapterID=60.
- Real estate usually requires probate or a deed-based transfer: Real property located in Illinois commonly requires probate administration (or another court procedure) to change title when the decedent dies intestate—unless title already passes automatically (for example, joint tenancy with right of survivorship or a valid transfer-on-death deed). If real property is involved, probate is often necessary to clear title.
Typical scenarios:
- Small bank account and no real estate: If all the decedent’s property is small personal property and it qualifies under Illinois small-estate rules, an heir may be able to use an affidavit or summary procedure to collect assets without full probate.
- House and bank accounts: If the decedent owned real estate solely in their name, the estate will usually require probate so a court-appointed administrator can transfer title and distribute proceeds.
- Jointly titled assets and beneficiary accounts: If most assets had joint owners or named beneficiaries, those assets may pass outside probate; remaining assets may or may not require a limited probate depending on size and type.
When probate is practically required: probate is advisable when the estate includes real estate, when creditors or multiple potential heirs exist, when asset titles are unclear, or when the estate’s value exceeds small-estate limits. Probate also provides a formal mechanism to protect administrators and to obtain court orders if disputes arise.
Where to find Illinois law: The Probate Act of 1975 (755 ILCS 5) governs probate, intestacy, appointment of administrators, and summary/small-estate procedures. See the statute here: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2106&ChapterID=60. For the small estate and summary provisions, review the sections of the same Act that address summary administration and small-estate affidavits.
Helpful Hints
- Inventory assets before deciding: list bank accounts, real estate, vehicles, retirement accounts, life insurance, and property titles. Whether probate is needed often hinges on ownership and title.
- Check beneficiary designations and joint ownership: accounts or property that name a beneficiary or have joint owners often transfer outside probate.
- Small-estate rules change: consult the Illinois Probate Act (755 ILCS 5) or an attorney to confirm current small-estate thresholds and eligibility for affidavit or summary procedures: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2106&ChapterID=60.
- Real estate usually triggers probate: if the decedent owned Illinois real property solely in their name, plan on probate or a court proceeding to clear title unless a valid nonprobate transfer exists.
- Know the timeline: probate has notice requirements and filing deadlines for creditor claims. Acting promptly helps avoid delays and potential disputes.
- When heirs disagree or a creditor claim appears: open probate and seek court guidance. Probate gives a structured legal framework to resolve disputes and protect those who administer the estate.
- Get help for complex cases: estates that involve businesses, out-of-state property, contested heirship, tax issues, or potential creditor suits usually benefit from an attorney’s guidance.