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The probate process for those who pass away without a will

On Behalf of | Aug 22, 2022 | Probate Litigation |

Dying intestate in Illinois means that any property left behind will be distributed in accordance with Illinois intestate succession laws. “Intestate” is the legal term for dying without a valid, enforceable will. Probate begins with the court appointing an administrator who is charged with the specific duties regarding property distribution. Claims against the estate are also prioritized with any remaining assets distributed according to family inheritance standing.

Naming an administrator

Individuals who are legally married will typically have their spouse named as administrator. However, this is not necessarily an automatic assignment. The administrator, also known as the personal representative, must be of sound mind and be capable of performing the duties according to law. Certain criminal histories can result in denial in some instances.

Order of administrator succession

Aside from an assignment of a spouse who may also inherit the decedent’s personal assets, the line of administrator succession next goes to children and then on to parents if the decedent has no children. The court decides which sibling will be assigned as administrator, but input from the family is accepted in most probate situations. The court also has the power to assign an individual from outside of the family or require a bond posting.

Duties of the administrator

The estate administrator is required to inventory all assets and documents pertaining to the decedent estate and notify all creditors. However, the order of payment distribution priority begins with tax liabilities, funeral expenses, court costs, attorney’s fees, and administration expenses. Creditors are typically paid after these initial payments are satisfied. If there are any estate proceeds remaining after the probate process is complete, they are distributed to the family per orders from the court.

Some decedents fail to establish a will because their estate is insolvent. Those who may be in charge of estate administration can actually do nothing if it is the best option. Any property that is held in joint ownership such as a bank account or even real estate will become property of the surviving account holders.