Article VI - Probate Of Wills And Issuance Of Letters Of Office
(755 ILCS 5/Art. VI heading) ARTICLE VI PROBATE OF WILLS AND ISSUANCE OF LETTERS OF OFFICE
(755 ILCS 5/6‑1) (from Ch. 110 1/2, par. 6‑1)
Sec. 6‑1. Duty to file will ‑ altering, destroying or secreting.)
(a) Immediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.
(b) If any person wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator is known to him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense. The 30‑day period does not apply to the Secretary of State when acting pursuant to Section 5.15 of the Secretary of State Act.
(Source: P.A. 96‑137, eff. 1‑1‑10.)
(755 ILCS 5/6‑2) (from Ch. 110 1/2, par. 6‑2)
Sec. 6‑2. Petition to admit will or to issue letters.) Anyone desiring to have a will admitted to probate must file a petition therefor in the court of the proper county. The petition must state, if known: (a) the name and place of residence of the testator at the time of his 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 name 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 pursuant to Section 28‑3. 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. 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 admission. If a petition for letters of administration with the will annexed states that there are one or more persons entitled either to 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 Section 9‑5 and file proof of mailing with the clerk of the court.
(Source: P.A. 84‑555; 84‑690.) |
(755 ILCS 5/6‑3) (from Ch. 110 1/2, par. 6‑3)
Sec. 6‑3. Duty of executor to present will for probate.) (a) Within 30 days after a person acquires knowledge that he is named as executor of the will of a deceased person, he shall either institute a proceeding to have the will admitted to probate in the court of the proper county or declare his refusal to act as executor. If he fails to do so, except for good cause shown, the court on its motion or on the petition of any interested person may deny him the right to act as executor and letters of office may be issued by the court as if the person so named were disqualified to act as executor.
(b) When 30 days have elapsed since the death of the testator and no petition has been filed to admit his will to probate, the court may proceed to probate the will without the filing of a petition therefor, unless it appears to the court that probate thereof is unnecessary and failure to probate it will not prejudice the rights of any interested person. Such notice of the hearing on the admission of the will to probate shall be given to the persons in interest as the court directs.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑4) (from Ch. 110 1/2, par. 6‑4)
Sec. 6‑4. Admission of will to probate ‑ testimony or affidavit of witnesses.) (a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
(b) The statements of a witness to prove the will under subsection 6‑4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑5) (from Ch. 110 1/2, par. 6‑5)
Sec. 6‑5. Deposition of witness.) When a witness to a will resides outside the county in which the will is offered for probate or is unable to attend court and can be found and is mentally and physically capable of testifying, the court, upon the petition of any person seeking probate of the will and upon such notice of the petition to persons interested as the court directs, may issue a commission with the will or a photographic copy thereof attached. The commission shall be directed to any judge, notary public, mayor or other chief magistrate of a city or United States consul, vice‑consul, consular agent, secretary of legation or commissioned officer in active service of the armed forces of the United States and shall authorize and require him to cause that witness to come before him at such time and place as he designates and to take the deposition of the witness on oath or affirmation and upon all such written interrogatories and cross‑interrogatories as may be enclosed with the commission. With the least possible delay the person taking the deposition shall certify it, the commission, and the interrogatories to the court from which the commission issued. When the deposition of a witness is so taken and returned to the court, his testimony has the same effect as if he testified in the court from which the commission issued. When the commission is issued to the officer by his official title only and not by name, the seal of his office attached to his certificate is sufficient evidence of his identity and official character.
(Source: P.A. 95‑331, eff. 8‑21‑07.)
(755 ILCS 5/6‑6) (from Ch. 110 1/2, par. 6‑6)
Sec. 6‑6. Proof of handwriting of deceased, disabled or inaccessible witness.) (a) If a witness to a will (1) is dead, (2) is blind, (3) is mentally or physically incapable of testifying, (4) cannot be found, (5) is in active service of the armed forces of the United States or (6) is outside this State, the court may admit proof of the handwriting of the witness and such other secondary evidence as is admissible in any court of record to establish written contracts and may admit the will to probate as though it had been proved by the testimony of the witness. On motion of any interested person or on its own motion, the court may require that the deposition of any such witness, who can be found, is mentally and physically capable of testifying and is not in the active service of the armed forces of the United States outside of the continental United States, be taken as the best evidence thereof.
(b) As used in this Section, "continental United States" means the States of the United States and the District of Columbia.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑7) (from Ch. 110 1/2, par. 6‑7)
Sec. 6‑7. Will to remain with clerk.) All original wills which are admitted to probate shall remain in the custody of the clerk, unless otherwise ordered by the court.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑8) (from Ch. 110 1/2, par. 6‑8)
Sec. 6‑8. Issuance of letters testamentary.) When a will is admitted to probate, letters testamentary shall be issued to the executor named in the will if he qualifies and accepts the office, unless the issuance of letters is excused.
(Source: P.A. 81‑0213; 81‑0788; 81‑1509.) |
(755 ILCS 5/6‑9) (from Ch. 110 1/2, par. 6‑9)
Sec. 6‑9. Failure or refusal to qualify ‑ death, resignation or revocation of letters ‑ non‑designation.) Unless otherwise provided by the will, (a) if one of several executors named in the will fails or refuses to qualify and accept the office, letters testamentary shall be issued to the executor who qualifies and accepts the office, (b) if one of several executors to whom letters have been issued dies or resigns or his letters are revoked, the remaining executor shall continue to administer the estate, and (c) in either event the remaining executor has all powers vested in all the executors named in the will. If no executor is named in the will or the named executor fails or refuses to qualify and accept the office or, if after letters are issued the sole executor or all the named executors die or resign or their letters are revoked, letters of administration with the will annexed shall be issued in accordance with the preferences in Section 9‑3 upon petition under Section 6‑2 and notice as provided in Section 9‑5.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑10) (from Ch. 110 1/2, par. 6‑10)
Sec. 6‑10. Notice ‑ waiver.) (a) Not more than 14 days after entry of an order admitting or denying admission of a will to probate or appointing a representative, the representative or, if none, the petitioner must mail a copy of the petition to admit the will or for letters and a copy of the order showing the date of entry to each of the testator's heirs and legatees whose names and post office addresses are stated in the petition. If the name or post office address of any heir or legatee is not stated in the petition, the representative or, if none, the petitioner must publish a notice once a week for 3 successive weeks, the first publication to be not more than 14 days after entry of the order, describing the order and the date of entry. The notice shall be published in a newspaper published in the county where the order was entered and may be combined with a notice under Section 18‑3. When the petition names a trustee of a trust, it is not necessary to publish for or mail copies of the petition and order to any beneficiary of the trust who is not an heir or legatee. The information mailed or published under this Section must include an explanation, in form prescribed by rule of the Supreme Court of this State, of the rights of heirs and legatees to require formal proof of will under Section 6‑21 and to contest the admission or denial of admission of the will to probate under Section 8‑1 or 8‑2. The petitioner or representative must file proof of mailing and publication, if publication is required, with the clerk of the court.
(b) A copy of the petition and of the order need not be sent to and notice need not be published for any person who is not designated in the petition as a minor or disabled person and who personally appeared before the court at the hearing or who filed his waiver of notice.
(Source: P.A. 81‑1453.) |
(755 ILCS 5/6‑11) (from Ch. 110 1/2, par. 6‑11)
Sec. 6‑11. Omitted or unnotified heir or legatee.) (a) If it appears after entry of an order admitting or denying admission of a will to probate that an heir or legatee was omitted from the petition to admit the will to probate or, if included in the petition, that notice to him was not mailed or published as provided in Section 6‑10 or 6‑20, whichever is applicable, and that no waiver of notice was filed by the omitted or unnotified heir or legatee, an amended petition shall be filed under Section 6‑2 or 6‑20 which shall include the omitted or unnotified heir or legatee.
(b) If the amended petition is filed under Section 6‑2, a copy of the amended petition and the order admitting or denying admission of the will to probate or notice thereof shall be mailed to or published for the omitted or unnotified person as provided in Section 6‑10, in the same manner as if the order were entered at the time the amended petition was filed. The original order admitting or denying admission of the will to probate is effective as to the omitted or unnotified person as of the date the amended petition is filed and it is effective as to all other persons, including creditors, as of the date of its entry.
(c) If the amended petition is filed under Section 6‑20, notice of the hearing on the amended petition shall be mailed or published, as provided in Section 6‑20, to or for the omitted or unnotified person and to all persons included in any prior petition. In the absence of objections by the omitted or unnotified person, evidence received at the hearing on the original petition to admit the will to probate constitutes prima facie proof of the execution of the will at the hearing on the amended petition. An order admitting the will to probate on an amended petition filed under Section 6‑20 is effective as to the omitted or unnotified person as of the date of its entry, but the original order admitting the will to probate is effective as to all other persons, including creditors, as of the date of its entry.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑12) (from Ch. 110 1/2, par. 6‑12)
Sec. 6‑12. Appointment of guardian ad litem.) When an heir or legatee of a testator is a minor or disabled person who is entitled to notice under Section 6‑10 at the time an order is entered admitting or denying admission of a will to probate or who is entitled to notice under Section 6‑20 or 6‑21 of the hearing on the petition to admit the will, the court may appoint a guardian ad litem to protect the interests of the ward with respect to the admission or denial, or to represent the ward at the hearing, if the court finds that (a) the interests of the ward are not adequately represented by a personal fiduciary acting or designated to act pursuant to Section 28‑3 or by another party having a substantially identical interest in the proceedings and the ward is not represented by a guardian of his estate and (b) the appointment of a guardian ad litem is necessary to protect the ward's interests.
(Source: P.A. 81‑213.) |
(755 ILCS 5/6‑13) (from Ch. 110 1/2, par. 6‑13)
Sec. 6‑13. Who may act as executor.) (a) A person who has attained the age of 18 years and is a resident of the United States, is not of unsound mind, is not an adjudged disabled person as defined in this Act and has not been convicted of a felony, is qualified to act as executor.
(b) If a person named as executor in a will is not qualified to act at the time of admission of the will to probate but thereafter becomes qualified and files a petition for the issuance of letters, takes oath and gives bond as executor, the court may issue letters testamentary to him as co‑executor with the executor who has qualified or if no executor has qualified the court may issue letters testamentary to him and revoke the letters of administration with the will annexed.
The court may in its discretion require a nonresident executor to furnish a bond in such amount and with such surety as the court determines notwithstanding any contrary provision of the will.
(Source: P.A. 85‑692.) |
(755 ILCS 5/6‑14) (from Ch. 110 1/2, par. 6‑14)
Sec. 6‑14. Power of executor before issuance of letters.) Before issuance of letters to an executor his power extends to the carrying out of any gift of the decedent's body or any part thereof, to the burial of the decedent, the payment of necessary funeral charges and the preservation of the estate; but if the will is not admitted to probate, the executor is not liable as an executor of his own wrong, except for his refusal to deliver the estate to the person authorized by law to receive it or for waste or misapplication of the estate.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑15) (from Ch. 110 1/2, par. 6‑15)
Sec. 6‑15. Executor to administer all estate of decedent.) The executor or the administrator with the will annexed shall administer all the testate and intestate estate of the decedent.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑16) (from Ch. 110 1/2, par. 6‑16)
Sec. 6‑16. Power of administrator with the will annexed.) Unless otherwise expressly provided by the will, an administrator with the will annexed has all the powers and duties of the executor under the will, but this does not excuse the administrator from giving security on his bond.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑17) (from Ch. 110 1/2, par. 6‑17)
Sec. 6‑17. Witness to appear for probate ‑ penalty.) It is the duty of a witness to any will executed in this State to appear before the court at the hearing on the admission of the will to probate and testify concerning the execution and validity of the will unless proof of will is made by another method as provided in this Act. The court may attach and punish by fine and imprisonment, or either, any witness who, without a reasonable excuse, fails to appear and testify when subpoenaed.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑18) (from Ch. 110 1/2, par. 6‑18)
Sec. 6‑18. Will as evidence.) An authenticated copy of a domestic or foreign will and of the order admitting it or denying it to probate are evidence in any court in this State.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑19) (from Ch. 110 1/2, par. 6‑19)
Sec. 6‑19. Judge as witness.) If a judge is a witness to a will which is required by law to be proved before him, another judge shall be designated to take the testimony of witnesses to the will and to decide whether or not the will shall be admitted to probate. The judge who is the witness may proceed to administer the estate unless he is otherwise precluded therefrom by this Act.
(Source: P.A. 79‑328.) |
(755 ILCS 5/6‑20) (from Ch. 110 1/2, par. 6‑20)
Sec. 6‑20. Petition to admit will to probate on presumption of death of testator ‑ notice.) (a) Anyone desiring to have a will admitted to probate on the presumption of death of the testator must file a petition therefor in the court of the proper county. The petition must state, in addition to the information required by Section 6‑2 (other than clauses (a) and (b)), the facts and circumstances raising the presumption, the name and last known post office address of the testator and, if known, the name and post office address of each person in possession or control of any property of the testator.
(b) Not less than 30 days before the hearing on the petition the petitioner must (1) mail a copy of the petition to the testator at his last known address, to each of the testator's heirs and legatees whose names and post office addresses are stated in the petition and to each person shown by the petition to be in possession or control of any property of the testator, and (2) publish a notice of the hearing on the petition once a week for 3 successive weeks, the first publication to be not less than 30 days before the hearing. The notice must state the time and place of the hearing, the name of the testator and, when known, the names of the heirs and legatees. The petitioner shall endorse the time and place of the hearing on each copy of the petition mailed by him. When the petition names a trustee of a trust, it is not necessary to mail a copy of the petition to any beneficiary of the trust who is not an heir or legatee, or to include the name of such beneficiary in the published notice. If any person objects to the admission of the will to probate, the court may require that such notice of the time and place of the hearing as it directs be given to any beneficiary of the trust not previously notified. The petitioner must file proof of mailing and proof of publication with the clerk of the court.
(c) A copy of the petition need not be sent to any person not designated in the petition as a minor or disabled person who personally appears before the court at the hearing or who files his waiver of notice.
(d) When a will is admitted to probate on presumption of the testator's death, the notice provided for in Section 6‑10 is not required.
(Source: P.A. 81‑1453.) |
(755 ILCS 5/6‑21) (from Ch. 110 1/2, par. 6‑21)
Sec. 6‑21. Formal proof of will.) If a will has been admitted to probate before notice in accordance with Section 6‑4, any person entitled to notice under Section 6‑10 may file a petition within 42 days after the effective date of the original order admitting the will to probate to require proof of the will pursuant to this Section. The court must set the matter for hearing upon such notice to interested persons as the court directs. At the hearing the proponent must establish the will by testimony of the witnesses as provided in subsection 6‑4 (b) (1) or Section 6‑5 or other evidence as provided in this Act, but not as provided by subsection 6‑4 (b) (2) or subsection 6‑4 (b) (3), as if the will had not originally been admitted to probate. If the proponent establishes the will by sufficient competent evidence, the original order admitting it to probate and the original order appointing the representative shall be confirmed and are effective as to all persons, including creditors, as of the dates of their entries, unless there is proof of fraud, forgery, compulsion or other improper conduct, which in the opinion of the court is sufficient to invalidate or destroy the will. The time for filing a petition to contest a will under Section 8‑1 is not extended by the filing of the petition under this Section if the order admitting the will to probate is confirmed, but if that order is vacated, the time for filing the petition under Section 8‑2 runs from the date of vacation of the order admitting the will to probate.
(Source: P.A. 81‑213.) |