Appoint an Executor

An executor is the person who is responsible for managing the estate of a decedent and distributing the assets to the decedent’s beneficiaries. Typically, the executor is the person named by the decedent in his (or her) will. In the case of a person who passes away without having created a will, the executor is referred to as an estate administrator and is appointed by the probate court judge. However, even if the executor is named in a will, a probate court judge must officially appoint an executor before he can begin performing his duties as the executor. If you have been named as an executor in a will and would like information about how to be formally appointed as the executor, contact a Chicago probate attorney.

Naming someone as executor in the will is only does not give that person the legal authority to perform the duties of the executor. Before a person can legally perform the duties of an executor, he must be appointed by the court. First, the decedent’s will must be filed with the local county court clerk in Chicago. Next the named executor must petition the probate court to open the estate and request that the court name him as the executor. The notice must include the names and addresses of all interested parties including beneficiaries named in the will as well as the decedent’s heirs. Heirs are those who would be legally entitled to inherit from the decedent if he did not have a will. The probate court judge will review the will and the petition to open the estate. Unless there is a glaring problem with the petition or the will, the court will formally open the estate and appoint the person as the executor. The executor is required to notify all of the interested parties named in the original petition to open the estate that he has been named the executor.

In Chicago the process of being appointed as an executor can take a month or longer. However, there may be complications that extend the process. For example, interested parties have the legal right to file a will contest. If this happens, then there may be a delay in the court approving the petition to open the estate and appoint an executor. In addition, interested parties may object to the appointment of the executor, causing a delay in the process. If you have questions about how to appoint an executor, contact an experienced Chicago probate attorney.

Under the Illinois Probate Act, in order to be appointed an executor, there are five basic requirements:

• Must be 18 years old
• Must have the mental capacity
• Must not have been convicted of a felony
• What’s not disabled as defined by the Illinois Probate Act
• Must be a resident of the United States

The executor is not required to live in Chicago or Illinois. However, if you do live out of state, contact a probate attorney in Chicago to learn whether or not you will be required to furnish a surety bond under Illinois Probate Act 755 ILCS 5/6-13(b). However, the law does not require that the judge must require a bond in order to appoint an executor who lives out of state. It is optional.

Generally speaking, in order to serve as an executor if an estate you must be named in the will as executor. However, if you do not meet the minimum qualifications as stated in the Illinois Probate Act, it is unlikely that the court will approve your appointment to serve as executor.

In addition, if the executor named in the will refuses to serve as an executor, the probate court may require him to complete a declination to act form. If this happens, the successor executor named in the will can petition to be appointed executor and open the estate. If the named executor and successor executors are unable or unwilling to serve then any interested party can petition the probate court to be named as the “administrator with the will annexed”. This means that the person has the authority to act as the representative of the estate and that he must use the will as the guide as to how to perform his duties.

If the decedent did not leave a will, meaning the decedent passed away intestate, then the court will appoint an administrator to perform the activities that an executor would perform. Typically, an interested party will petition the court to be named the estate administrator. As long as the person is qualified the court will grant the petition.

The probate attorneys serving Chicago at the Law offices of Stephen Bilkis & Associates have extensive experience helping executors and estate administrators during all phases of probate. We have the knowledge and resources to guide you through the appointment process. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.