Illinois Probate Act 755 ILCS 5/6-16: Power of Administrator With the Will Annexed

A will is a legally enforceable document that allows the testator to state how he (or she) wants his property distributed once he passes away. In addition, typically the testator also states who he wants to serve as the executor of his estate. The executor is responsible for ensuring that the testator’s estate is settled and distributed in a manner that is consistent with the will and with Illinois law. There are occasions, however, when the executor named in the will is not willing, able, or eligible to serve as executor. In such instances, the appropriate Illinois Probate Court in the Chicago area must appoint another person to administer the decedent’s estate. If you have questions or concerns related to the administration of a loved one’s estate, including the rules in section 6-16 of the Illinois Probate Act, Power of administrator with the will annexed, contact a skilled Chicago probate attorney at the Law Offices of Stephen Bilkis & Associates.

Typically, when a testator writes a will, he will indicate who he wants to serve as executor. For example, the will might include language such as: “I name John Smith to serve as my executor. If John Smith is unwilling or unable to serve as executor, I name Joan Smith to serve as my executor.” The person named as executor does not automatically have the legal authority to serve as executor simply because the testator named him as such in his will. The name executor must petition the court to appoint him executor. The court will grant such a petition only if the petitioner meets the eligibility requirements. In order to be eligible, the petition must be at least 18 years old, must not be a convicted felon, must be a resident of the United States, must not suffer from a mental incapacity, and must not have a disability as defined by the Illinois Probate Act.

If the court grants the petition, the court will issue the petition a document called letters testamentary. Letters are legal proof that the person named in the document has been appointed to serve as executor and has the right to act on behalf of the estate.

If the executor named in the will is not able, willing, or eligible to serve, or if no executor is named in the will, then another person can petition the court to be named executor. When the court appoints such a person, he or she is called an administrator with the will annexed. In practical terms his means that the person was appointed to administer the decedent’s estate based on the terms of the will. Under Illinois law an administrator with the will annexed has the same authority as an executor would have under the will. If you wish to petition the Probate Court to be named administrator with the will annexed, contact an experienced Chicago probate attorney to review the eligibility requires and the process.

While a will can limit the authority of an executor, the general powers and duties of an executor and of an administrator with the will annexed include:

• Gathering assets. The executor must identify the assets that are part of the decedent’s estate, safeguard them, and determine their value. It is important that the value of estate at the time of the decedent’s death is determined. Estate assets may include personal property, real estate, and financial property such as bank and investment accounts. Steps necessary to safeguard assets vary depending on the type of asset. If the asset is a house, for example, the executor would need to make sure that it is properly locked and insured.
• Paying estate bills. In addition to ensuring that a decedent’s estate is settled and disbursed in accordance with the wishes of the decedent, a primary concern of the Illinois Probate Court is to ensure that the decedent’s creditors are paid. Thus, the executor is required to pay known debts and claim against the estate that are valid and timely filed. To learn more about the process of settling claims against the estate, contact an experienced probate attorney in Chicago.
• Distributing assets. One of the last responsibilities of the executor or administrator with the will annexed is to distribute assets to the beneficiaries that the decedent named in his will. Assets are distributed according to the terms of the will. Distributing assets typically involves transferring title of assets to the distributee, or handing over personal property to the appropriate distributee

1. Who may act as executor: Illinois Probate Act, 755 ILCS 5/6-13
2. Who may act as administrator: Illinois Probate Act, 755 ILCS 5/9-1
3. Power of executor before issuance of letters : Illinois Probate Act, 755 ILCS 5/6-14
4. Executor to administer all estate of decedent: Illinois Probate Act, 755 ILCS 5/6-15

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.

If you have questions about the process for petitioning to be named executor or administrator with the will annexed, it is important that you review the process with an experienced attorney. The probate attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have extensive experience working closely with executors, estate administrators, personal representatives and other fiduciaries on matters related to the estate administration. If you have concerns related to the administration of an estate including the requirements of Illinois Probate Act section 6-16- Power of administrator with the will annexed, contact one of our skilled attorneys attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.