Rules of Probate Procedure

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1. Uniformity of Rules and Forms

2. Waiver of Rule

OPENING DECEDENT'S ESTATES

3. Petitions for Admission of Wills to Probate and Petitions for Letters of Administration

4. Proof to Establish Dependency

5. Deposition of Witness to a Will

6. Proof of Heirship

7. Inventory

8. Claims Against the Estate

9. Guardian ad Litem

10. Attorneys-in-fact and Representatives of Foreign Countries

GUARDIANS

11. General

12. Settlement of Personal Injury and Wrongful Death Cases

13. Distribution Before the Expiration of Six Months After Issuance of Letters

14. Demand on Executor, Administrator, or Guardian to Pay Money or Deliver Property

15. Objections

ACCOUNTS

16. Change in Identity of the Parties

17. Accounts

18. Distribution

19. Final Account - Costs, Claims and Taxes

20. Final Settlement of Guardian with Ward

21. Withdrawal of Money on Deposit with the County Treasurer (Recovery of Escheated Property)

GENERAL AND MISCELLANEOUS

22. Form of Papers

23. Filing of Address by Executor, Administrator or Guardian

24. Custody and Removal of Files

25. Mailings and Publications

RULES OF PROBATE PROCEDURE

In accordance with the practice and authority provided for the establishment of Rules of Procedure, IT IS ORDERED that the following Rules of Probate Procedure be adopted to that end.

Rule 1 - Uniformity of Rules and Forms

The Rules of Probate Procedure shall be uniform among all Courts of the Tenth Judicial Circuit, and to the extent possible all probate forms shall also be uniform.

Rule 2 - Waiver of Rule

Procedural probate rules may be waived or modified for good cause shown in special instance by order of the trial judge hearing the proceeding.

OPENING DECEDENT'S ESTATES

Rule 3 - Petitions for Admission of Wills to Probate and Petitions for Letters of Administration

Each petition for admission of a will to probate or for letters of administration shall be filed substantially in the form prescribed by the Court and furnished by the clerk.

After admission of a will to probate, the clerk shall cause a copy to become part of the court file. The original will shall be kept separate from the court f ile for a period of six (6) months following its admission to probate and the clerk shall not surrender possession thereof to anyone except by order of the Court.

Rule 4 - Proof to Establish Dependency

When compensation is claimed or is to be paid under the Workers' Compensation Act, Worker's Occupational Diseases Act, Federal Employers' Liability Act, Injuries Act, Dram Shop Act, Structural Work Act, or any similar statute for injuries or disease resulting in the death of a person whose estate is pending in this court and it is desired to offer proof of dependency for the purpose of determining the respective proportionate distributive shares of the persons entitled to receive the compensation, proof of dependency may be made in the manner provided by Section 5-3 of the Probate Act for ascertainment of heirship. A guardian ad litem may be appointed to represent all interested minors and incompetents.

Rule 5 - Deposition of Witness to a Will

A person desiring to take the deposition of a witness to a will as provided by Section 6-5 of the Probate Act shall give such notice of the hearing on the petition to take such deposition as the court may direct to be given to each heir, legatee and devisee whose name and post office address are stated in the petition for admission of the will to probate. Proposed written interrogatories shall be filed prior to the hearing. Any persons interested may propose cross-interrogatories at the time of the hearing or within such further time as the Court shall allow and shall give such notice of the hearing thereon as the Court may direct.

Rule 6 - Proof of Heirship

(1) When a petition for admission of a will to probate or for letters of administration has been filed, ascertainment of heirship may be made:

(a) by testimony of witnesses examined in open court;

(b) by affidavit as provided in Section 5-3 of the Probate Act;

(c) by deposition; or

(d) by a verified petition for admission of a will to probate or for letters of administration.

(2) When no petition has been filed for admission of a will to probate or for letters of administration, a person desiring to obtain an ascertainment and declaration of heirship or dependency shall file a petition stating:

(a) the name and address of petitioner and his attorney;

(b) the name and place of residence of the decedent at the time of his death;

(c) the time and place of death;

(d) the names and post office addresses of his heirs and the fact as to whether any of them is a minor or incompetent. Notice of the petition and of the time and place of hearing shall be given in such manner as the Court directs to all heirs named in the petition.

Rule 7 - Inventory

(1) The inventory shall include the legal description of each parcel of real estate, and the street and number, if any.

(2) Descriptions of certificates of stock shall include the number of shares and class of shares and the exact corporate title. Descriptions of bonds shall include the total face value, the name of the obligor, the kind of bond, the rate of interest, the date of maturity, the coupons attached or the date to which interest is paid and the endorsements, if any. Descriptions of notes shall include the face amount and unpaid balance, the date of note, the date of maturity, the name of the maker, the rate of interest, the date to which interest is paid, the endorsements, if any, and if secured, a description of the security.

(3) The description of each cause of action shall include the name of the person against whom the cause of action exists or is asserted, the nature of the cause of action and, if suit has been instituted, the title of the suit, the name of the court in which it is pending, and the general number.

Rule 8 - Claims Against the Estate

(1) Each claim that is founded upon a written instrument shall be accompanied by a copy of the written instrument. Unless the original is lost or destroyed, it shall be exhibited to the Court at the hearing. If the claim is allowed, a notation of the allowance shall be made on the original instrument.

(2) The proceeding on any claim shall conform to the provisions of the Code of Civil Procedure, including the right for discovery.

Rule 9 - Guardian ad Litem

(1) Unless the court waives the appointment, a guardian ad litem shall be appointed to appear on behalf of a minor, or a disabled adult in the following cases:

(a) when a petition has been filed for formal proof of will, and it appears therefrom that not all of the names and post office addresses of the heirs of the decedent are known;

(b) on the hearing on the final account of an executor or administrator; and

(c) on the hearing of a final account of a guardian, if at the time of the hearing the ward has not been adjudged competent or restored to reason, or the ward has not attained majority.

(2) A guardian ad litem may be appointed on the hearing of a final account, or of a current account in which a partial or complete distribution of the estate is made, where all or any part of the estate is received from, or is to be distributed to, the same person, corporation or corporations in a fiduciary capacity (such as trustee or guardian) which has served as legal representative of the estate.

Rule 10 - Attorneys-in-fact and Representatives of Foreign Countries

(1) The distributive share of a citizen and resident of a foreign country may be paid to the official representative of such foreign country (hereinafter referred to as "representative"), attorney-in-fact, or assignee of such distributee (provided said official representative, attorney-in-fact, or assignee is a bona fide resident of the State of Illinois), in the following manner:

(a) Such representative or attorney-in-fact or assignee shall present satisfactory evidence to the Court that his principal is, in fact, the person entitled to receive such distributive share and that such representative o r attorney-in-fact or assignee has been duly authorized, by treaty or power of attorney or assignment, to receive said distributive share. Each power of attorney or assignment shall be signed by the distributee and properly authenticated and acknowledged before the American Counsul of the jurisdiction in which the foreign distributee resides, unless the Court shall be satisfied with the other evidence of the genuineness or validity of the power of attorney or assignment.

(b) Such representative or attorney-in-fact shall present his petition for leave to receive in the form prescribed by the court and furnished by the clerk. When such petition is allowed by the Court, an order in conformity therewith shall be entered and spread of record.

(c) Unless excused by the Court, such representative or attorney-in-fact shall furnish suitable bond with sureties, in an amount to be fixed by the court, which bond shall be in form prescribed by the court and furnished by the clerk and shall be conditioned upon the payment and delivery of the distributive share to the distributee.

(d) Such representative or attorney-in-fact shall acknowledge receipt in writing of the distributive share received from the legal representative, and he shall certify on said receipt that his authority to receive the distributive share has not been revoked. The legal representative shall file said receipt and certificate with his vouchers.

(e) Such representative or attorney-in-fact within ninety days (or any extension thereof allowed by the Court during the said ninety day period) shall present to the Court his report of compliance, together with the receipt or voucher of the distributee evidencing payment and delivery of the distributive share to the distributee lawfully entitled thereto.

(f) In the event of the failure, refusal or inability of the representative or attorney-in-fact to pay and deliver the distributive share to the distributee lawfully entitled thereto within said ninety days (or any extension thereof granted by the Court during the said ninety day period), the distributive share shall be deposited with the County Treasurer of the County subject to the further order of the Court and presentation of voucher or receipt of the County Treasurer evidencing the deposit of said distributive share shall be produced and filed in the court by the representative or attorney-in-fact, whereupon he shall be discharged from further duty.

(2) Notice of the hearing on a current or final account of a guardian pursuant to paragraph 24-1 l(b) of the Probate Act shall be given to each claimant whose claim has been filed and remains undetermined or unpaid, to the ward, if living, to the legal representative and the heirs at law and legatees of a deceased ward, and where entitled, to the Chief Attorney of the Administrator of Veterans Affairs.

Rule 11 - Guardians

(1) Each guardian's petition to apply any substantial part of the ward's estate for the comfort, support or education of the ward or other persons entitled to support from him, shall state the value of the estate at the time of presenting the petition, the annual income available to the ward and the amount of the last authorization for the expenditure on behalf of said ward for the same purpose, if any.

(2) The petition shall state whether or not the petitioner or any other person is receiving any relief or assistance from any Veterans' Bureau, Social Security Administration or any charitable or relief organization, society, board or department, or payment from any other source, either individually or as guardian for the benefit of the ward.

Rule 12 - Settlement of Personal Injury and Wrongful Death Cases

(1) Each petition for leave to settle a cause of action for personal injuries sustained by a ward or a cause of action for the wrongful death of a person whose estate is in the course of administration shall be executed by the legal representative or any other interested person. The attorney for the representative shall certify in writing as a part of the petition that in his opinion, based upon the facts and law applicable thereto, the proposed settlement is just and proper.

(2) In the event there is no independent attorney employed by the representative of the estate, the Court will suggest that the representative employ an independent attorney to investigate and make recommendations; but if the representative does not employ an independent attorney, then the Court may on its own motion appoint an attorney as guardian ad litem to investigate the merits of the proposed settlement, and to report in writing his findings and recommendations and to otherwise comply with Rule 9 before final action is taken. In the event said guardian ad litem does not recommend the approval of the proposed settlement of said claim, he shall not represent as a private attorney, any of the parties or personal representatives having an interest in said claim, but he may continue as such guardian ad litem with reference to any revised offer of settlement so long as the representative is not represented by an attorney, and shall report in writing his recommendations regarding said revised offer. The Court shall fix an appropriate fee for the guardian ad litem to be taxed as costs in the case.

(3) Notice of the filing of a petition for determination of dependency under the Wrongful Death Act or the Dram Shop Act and of the hearing thereon, shall be served by the legal representative or his attorney upon the person or persons named in sub-paragraphs (a), (b) and (c) of 740 ILCS 180/2 including persons furnishing hospital, medical or funeral services for the deceased person, unless payment for such services is shown.

(4) No settlement on behalf of a minor or incompetent will be authorized unless a report of the attending physician or surgeon is filed with the petition stating the nature and extent of the injury, and in case of minors, the minor appears in open court unless excused by the Court for good cause shown.

Rule 13 - Distribution Before the Expiration of Six Months After Issuance of Letters

Authority under Section 24-4(a) of the Probate Act to an executor or administrator to pay all or part of the distributive share to a distributee before the expiration of six months after the issuance of letters will be granted only after the filing of the inventory, the approval and filing of a current account, and the payment of all accrued costs. Evidence shall be presented to the Court that all allowed claims have been paid or that there is sufficient money on hand to pay all claims against the estate and to warrant distribution. The refunding bond shall be in the form prescribed by the Court and furnished by the clerk.

Rule 14 - Demand on Executor, Administrator, or Guardian to Pay Money or Deliver Property

Demand under the terms of Section 24-16(c) of the Probate Act on an executor, administrator, or guardian to pay money or deliver property to any per son in pursuance of the lawful order of the Court shall be made in writing by serving written demand on the executor, administrator, or guardian in the manner provided for service of motions.

Rule 15 - Objections

Objections to accounts, reports, awards, etc., shall be in writing and shall specify all grounds of objection.

ACCOUNTS

Rule 16 - Change in Identity of the Parties

Each administrator's or executor's account shall state any change in the identity of the parties entitled to a distributive share of the estate which change has occurred and has not theretofore been reported to the Court.

Rule 17 - Accounts

(1) Notice of the hearing on a final account of an executor or an administrator or on a current account that is intended to be binding pursuant to Section 24-2 of the Probate Act shall be given to all persons described in Section 24-2 of the Probate Act as follows:

(a) Such notice shall be in writing accompanied by a copy of the account except where notice is to be given by publication.

(b) The notice shall contain the time, place and nature of the hearing and substantially the following sentence: "If the account is approved by the Court upon the hearing, in the absence of fraud, accident or mistake, the account as approved is binding upon all persons to whom this notice is given."

(c) The notice shall be given at least 10 days prior to the hearing in the manner provided by Supreme Court Rule 105 except when notice is by publication as herein provided, and except that whenever the person resides outside the continental limits of the United States, the notice shall be by air mail at least 20 days prior to the date of the hearing.

(d) Whenever the name or place of residence of any such person is unknown and upon due diligence cannot be ascertained, and an affidavit to that effect shall be filed with the clerk of this court by said executor or administrator, then notice shall be given to such person by publication thereof at least once in some newspaper of general circulation published in this county at least 20 days prior to the date of the hearing.

(e) Proof of such notice shall be filed with the clerk of this court on or before the date of the hearing.

(2) Notice of the hearing on a current or final account of a guardian pursuant to paragraph 24-11(b) of the Probate Act shall be given to each claimant whose claim has been filed and remains undetermined or unpaid, to the ward, if living, to the legal representative and the heirs at law and legatees of a deceased ward, and where entitled, to the Chief Attorney of the Administrator of Veterans Affairs.

Rule 18 - Distribution

(1) If an heir at law of an intestate or legatee of a testate estate shall be a minor or shall die or be adjudicated incompetent, such fact shall be set forth in any petition requesting authority to make distribution.

(2) Except where the distributive share of a minor or a disabled adult qualifies for distribution under paragraph 25-2 of the Probate Act, distribution will be authorized only to the legal representative of such persons.

Rule 19 - Final Account - Costs, Claims and Taxes

No final account of any estate shall be approved unless it shall be verified and shall include:

(a) A statement that all court costs have been paid.

(b) A statement that all claims filed have been allowed or dismissed, together with a list of claims allowed and not yet shown paid of record.

(c) Receipts of claimants showing paid claims which have been allowed.

(d) A statement that Illinois Estate Tax which has been assessed has been paid, or adequate provision has been made for its payment.

(e) A statement that Federal Estate Tax which has been assessed has been paid, or adequate provision has been made for its payment.

Rule 20- Final Settlement of Guardian with Ward

On the final settlement of a ward's estate when the person entitled to the estate is the ward, the guardian will not be discharged unless the guardian exhibits to the court a rec eipt in full and entry of appearance waiving notice of hearing executed by the ward.

Rule 21 - Withdrawal of Money on Deposit with the County Treasurer (Recovery of Escheated Property)

Before any person presents his petition requesting the entry of an order directing the County Treasurer to pay money theretofore deposited by order of Court, he shall serve notice on

(a) the State's Attorney of the county,

(b) the former legal representative and his attorney, and

(c) all other persons entitled to notice under any order of court entered in the proceeding.

If the petition is sufficient, the Court may direct the State's Attorney and the former legal representative to answer the petition within a time fixed by the court. In case of failure, refusal, or inability of the State's Attorney or the former legal representative to answer the petition, the Court may appoint a special administrator or guardian ad litem to appear and defend against the petition.

GENERAL AND MISCELLANEOUS

Rule 22 - Form of Papers

Papers in original proceedings shall be prepared as follows: All papers and the copies thereof for filing and service shall be legibly written, typewritten, or printed.

Rule 23 - Filing of Address by Executor, Administrator or Guardian

Each executor, administrator or guardian shall file his address with the clerk at the time of subscribing his oath and shall record with the clerk any changes in his address taking place during the period of administration.

Rule 24 - Custody and Removal of Files

No original will or other original papers shall be taken from the courthouse except by order of Court. Original wills and other original papers may be taken from the office of the clerk by attorneys or representatives of abstract and title companies upon signing a written receipt. Each original paper taken shall be returned to the clerk during the same day it is withdrawn.

Rule 25 - Mailings and Publications

All mailings and publications which are the duty of the petitioner or the representative, and their proof, may be made by the attorney for the petitioner or the representative.

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