You have been named in someone’s Will to be the Executor of their Estate — what does this mean for you? This article will give you a general overview of what an Executor’s duties are in Illinois.
An Executor is a person appointed by a testator (someone who signs a Will) to carry out and administer the terms of their Will. This means that an executor’s primary job is to manage and distribute the assets of the estate of someone who has died (“Decedent”), according to the terms of the Decedent’s Will and Illinois Law. Once someone dies the Executor’s job starts and it will be at least 9 months to a year before the Executor’s job is done – assuming there are no complications with the Probate Estate.
The Executor’s Fiduciary Duty
Every estate has beneficiaries (aka “Legatees” when named in a Will) – those are the people who eventually receive the assets of the estate. The Executor has a fiduciary duty to those beneficiaries. Being a fiduciary means you have to manage and distribute Estate assets that are in the best interest of the estate and the beneficiaries of the estate. In Illinois, an Executor is held to the “Prudent Person Rule” standard, which means that an Executor has a responsibility to act as a “prudent person” would act when handling his or her own affairs. An Executor should monitor the assets of the estate and try to minimize any losses of the estate. If you neglect your duty to do that – you could be personally liable to the beneficiaries for any loss of estate assets.
Executor Legal Requirements
In order to an Executor in Illinois, a person has to meet the following qualifications:
1) Be at least 18 years old;
2) Be a resident of the United States;
3) Be of sound mind;
4) Have legal capacity to make decisions for themselves; and
5) Have not been convicted of a felony.
Steps for the Executor in the Illinois Probate Process:
The Executor’s job starts after someone dies. Here is a a general overview of the steps an Executor has to take to Probate someone’s Estate:
1. File the Decedent’s Original Will with the County Circuit Clerk’s office. This should be filed in the County were the Decedent lived at the time of their death. Illinois law states that a Will of the Decedent should be filed with the County Circuit Clerks’ office within 30 day’s of the date of death.
2. Determine if a Formal Probate of the Decedent’s Estate is Necessary. You should go to an attorney that does estate planning and probate administration for advice on whether the decedent’s estate needs to be probated or not. When I meet with an executor of an estate the first thing we do is identify “Probate Assets” – these are assets that don’t have beneficiary designations and were not jointly owned by the decedent and another party. If those Probate Assets do not add up to over $100,000 then you might not need to formally probate the decedent’s estate. You might be able to use a small estate affidavit to transfer those Probate Assets.
3. File a Petition for Probate. If a Probate Estate is necessary, your attorney will help you with filing the appropriate Paperwork in the court of the appropriate County in Illinois. You have to Petition, and complete other related documents with the Court to officially name you as the Executor of the Decedent’s Estate and officially start the Probate Process.
4. Receive Letters of Office. Once the Petition is filed and approved by the Court, the Court will issue you “Letters of Office” from which officially names you as the Executor of the Decedent’s estate.
5. Open an Estate Checking Account. Once you have your Letters of Office, you can officially start managing the Decedent’s Estate as Executor. The first thing you should do is open a Bank Account for the Estate. Banks will need your Letters of Office and an FEIN for the Estate before they will open an Estate checking account. All cash assets and other estate accounts will eventually be deposited in this Estate Checking Account. All estate expenses will be paid from this Estate checking account.
6. Send Out Necessary Notices. Creditors, Heirs and Legatees will need to be notified that the Decedent’s Probate Estate has been opened. You must notify known creditors of the Decedent’s Estate by mail and you must publish a Notice to Creditors in a local paper for three weeks in a row. Creditors have six months to file a claim against the decedent’s estate. You must notify all Heirs (people that inherit through State Law) and Legatees (people that inherit through the Will) of the Probate Estate as well.
7. Gather and Account for Estate Assets. While you are waiting for the Creditor’s six month claim period to expire you should start gathering assets of the Estate and making an inventory of those assets.
8. Settle Creditor Claims. Once the creditors claim period has expired you will determine what, if any, claims have been filed against the Estate and how those claims should be paid. The Illinois Probate Act has a priority list of what class/type of creditors get paid first. Be careful – if you pay a creditor that does not have priority – you will be personally liable to the other creditors for their payment.
9. Final Accounting and Inventory. Once the creditors are paid you will need to do a final accounting and inventory of the estate showing all money going into the Estate checking account and all payments made on the Estate’s behalf. You will also need to prepare a Final Special Report to the Court that details everything you have done as executor of the Decedent’s Estate.
10. Notify Legatees of the Estate. You will send all of the Legatees (anyone named in the Will) a copy of the Inventory and Accounting you have prepared and a Copy of the Special Report to the Court you have prepared. You will ask them to approve of your actions and the final distribution that will be made to the Legatees.
11. Receive Legatee Consents and Approvals. Assuming all of the Legatees approve of your Special Report and Final Accounting in writing, you will send the written approvals to the Court along with your Special Report and request that the Court approve your actions and close the Estate.
12. Make Final Distributions. Once the court approves the final paperwork you have submitted you can make final distributions to the beneficiaries of the estate. Once final distributions are made; all tax filings for the estate have been made and all expenses of the Estate have been made – you are done.
Conclusion: Every estate is unique and presents their own challenges. This was a general overview of the probate process of Illinois from the Executor’s point of view. Almost every Executor needs to hire an attorney to assist and advise them through this process. This process takes about 9-12 months minimum if there are no disputes or creditor claims. Most of the time people want to create an estate plan that allows their estate to avoid probate.