Executor Duties in Illinois Probate

Executor, administrator, representative

The Probate Act uses "representative" for the person in charge. If the will names the person, that person is the executor. If there is no will, or no named executor can act, the court appoints an administrator. For an administrator, Illinois lists who gets preference in this order: the surviving spouse or someone the spouse nominates, the people who inherit under the will, the children, the grandchildren, the parents, the brothers and sisters, and then the nearest relatives (5/9-3). The Public Administrator and a creditor come later in the list. The duties below apply to either kind of representative.

Before the court is involved

1. Get the will to the clerk. Whoever has the will must file it with the clerk right after the death. Altering or destroying a will without the testator's direction, or hiding it for 30 days after the death is known, is a crime under the statute (5/6-1).
2. Decide whether to serve. Within 30 days of learning you are named as executor, you must either ask the court to admit the will or say you refuse. If you do neither, the court may deny you the right to act (5/6-3).
3. Take the oath and post the bond. An individual representative files an oath and a bond the court approves, unless the will or the statute excuses the bond (5/12-2).

After letters of office

1. Tell the heirs and legatees. Within 14 days of the order, mail the petition and the order to the heirs and the people named in the will. The mailing must include a plain explanation of their rights to ask for formal proof of the will and to contest it (5/6-10).
2. File the inventory. Within 60 days after letters issue, file a verified inventory of the real and personal property. It must describe the real estate, the improvements and the encumbrances, state the cash on hand and list the personal property. If you learn of something new, file a supplemental inventory within 60 days (5/14-1).
3. Take care of real estate. The representative takes possession of the real estate during administration, collects rents, keeps the buildings in repair, pays taxes, mortgages and liens as they fall due, and may insure the property. A home lived in by the heir or legatee is treated differently unless the will or a court finding says otherwise (5/20-1).
4. Run the creditor notice. Publish once a week for three weeks and mail or deliver the notice to creditors you know or can reasonably find. File proof of publication with the clerk (5/18-3).
5. Handle claims. A claim may be filed with the representative, the court, or both (5/18-1). Claims have their own bar dates (5/18-12).
6. Pay what is owed, in order. Illinois sorts claims into seven classes. The first is funeral and burial costs and the costs of administration. Next come the surviving spouse's or child's award, debts due the United States, medical and nursing home costs for the last year of life along with limited wages owed, trust money that cannot be traced, debts to the state and local governments, and then all other claims (5/18-10). Heirs wait until valid claims are paid.
7. Account to the court. File a verified account within 60 days after the first 12 months of letters, unless the court excuses it with written consents from everyone interested (5/24-1).

Pay and protection

A representative is entitled to reasonable compensation for the work (5/27-1). The attorney for the representative is also entitled to reasonable compensation (5/27-2). If you act in good faith to find and notify creditors as 5/18-3 requires, you are not personally liable to a creditor you did not know about. An unpaid claim that is not barred can still be asserted against assets not yet distributed and against a distributee, within the limits of 5/18-12(d).

That protection depends on the notice being done correctly. The statute carves out a claimant whose claim is known to the representative and left unpaid.

When the job is bigger than expected

Duties are heavier when there is a business, rental property, a dispute among heirs, or a creditor you cannot place. A representative who sells property, makes distributions early or skips a notice can end up answering for it. If you are unsure, ask the court or a lawyer before you act, not after. Jeff can walk you through the steps in your estate and tell you where the court needs to be involved. Start with the probate overview, or read about trust administration if the person had a trust.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.