Illinois Probate Act 755 ILCS 5/7-4: Original Proof of Foreign Will in This State

When a loved one passes away, his (or her) estate must be settled. This means that the decedent’s debts must be paid and assets disbursed to beneficiaries and heirs. If the decedent left a will the will must first be go through a process called probate. Probate is a legal process that that is overseen by the Illinois Probate Court, during which the will is authenticated. In some cases the will is domestic—meaning it was executed in Illinois, while in other circumstances the will is foreign—meaning it was executed outside of Illinois. While probate is required in either case, the procedure is slightly different if the will is foreign. To ensure that you understand the rules related to probating a foreign will, including the requirements of the Illinois Probate Act section 7-4- Original proof of foreign will in this State, contact the Chicago probate attorneys at the Law Offices of Stephen Bilkis & Associates.

Probating a will means submitting the will for review by a Probate Court judge who will determine whether or not it is authentic. If the will is a domestic will, then probate involves the judge reviewing evidence from the two witnesses to the signing of the will. If either due to the will being self-proving, in-court testimony from the witnesses, or deposition testimony from the witness, the judge is satisfied that the will is authentic, the judge will issue an order to admit the will to probate.

If the will is foreign, then the process is different. The judge will admit the will to probate if:

• The will was signed by the testator, and the will had been admitted to probate outside of Illinois.
• The will was signed by the testator and was executed in manner consistent with the Illinois Probate Act.
• The will was signed by the testator and was executed in accordance with the law of the place the where the will was executed
• The will was signed by the testator and was executed in accordance with the law of the place where the testator lived.

Whether the will is domestic or foreign, the law allows objections to probate. However, only those who have standing may file objections. This includes beneficiaries and heirs. In additions, the only objections that will be entertained are those that are based on valid legal grounds such as absence of testamentary capacity, undue influence, or duress. As a Chicago probate attorney will explain, according to section 8-1 of the Illinois Probate Act, Contest of admission of will to probate; notice, to start the process of contesting a will, the petitioner must file a petition with the probate court having jurisdiction over the estate.

If the probate court judge determines that the will is invalid, then the judge will throw it out. As a result, the decedent’s estate will be treated as if he or she died intestate. The judge will appoint an estate administrator to manage the estate, and estate assets will go to the decedent’s next of kin based on the rules of intestate succession. The next of kin would be the decedent’s legal heirs. Under intestate succession the heirs are limited to the surviving spouse, children, grandparents, parents, siblings, and other blood relatives.

It is important to note that not all of the decedent’s property is part of his or her probate estate. In other words, some property will pass automatically to other people according to law, and will not be impacted by the decedent’s will or by the rules of intestate succession. Such property includes real estate or bank accounts held in joint tenancy with right of survivorship pass directly to the surviving joint tenants. Life insurance proceeds and retirement accounts go directly to the designated beneficiaries.

As for the decedent’s property that is part of his or her probate estate, once the probate court judge issues an order admitting the will to probate, the executor can move forward to administer the estate. Steps in administration include:

• Inventory the estate. The executor must inventory the estate, secure estate property, and appraise the property in the estate. Estate assets may include real estate such as the decedent’s residence and investment real estate. It also may include financial assets such as bank and investment accounts, and other financial accounts. Estate property will include personal property such as clothing, jewelry, vehicles, and home furnishings, as well as collectibles such as artwork.
• Pay estate debts. The executor must pay the debts owed by the decedent and by the estate out of estate assets. If the estate is involved in litigation such as a will contest, expenses related to defending the will contest will be paid out of estate assets. The executor is also responsible for filing any tax returns due and paying any taxes owed by the decedent or the estate.
• Distribute estate assets. The executor must distribute assets to the decedent’s beneficiaries based on the terms of the will.

Probate and administration typically take about 6-12 months. However, as an experienced probate attorney in Chicago will explain, administration can take quite a bit longer if complications develop. For example, if any interested party is upset about any aspect of the process, he or she can initiation estate litigation that can delay the administration process and the distribution of the assets. Other common problems involve concerns related to the validity of a will, questions about whether the executor or other fiduciaries have violated their fiduciary responsibilities, and objections to the accounting or executor’s fees. Before assets can be distributed, disputes related to the estate must be resolved.

1. Foreign will admitted to probate: Illinois Probate Act, 755 ILCS 5/7-1
2. Procedure for probate of foreign will: Illinois Probate Act, 755 ILCS 5/7-2
3. Proof of foreign will by copy: Illinois Probate Act, 755 ILCS 5/7-3

(a) A will executed outside of this State in accordance with this Act is sufficiently proved to admit it to probate in this State when proved in this State in the manner provided by this Act for proving wills executed in this State.

(b) A will executed outside of this State in accordance with the law of the place where executed is sufficiently proved to admit it to probate in this State when proved in this State in the manner provided by the law of the place where executed for proving wills there executed.

(c) A will executed outside of this State in accordance with the law of the testator's domicile at the time of its execution is sufficiently proved to admit it to probate in this State when proved in this State in the manner provided by the law of the testator's domicile at the time of its execution for proving wills there executed.

(d) A will proved as provided in this Section may not be admitted to probate when there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.

If you are involved in probating the will of a loved one that is a foreign will, there are special rules that must be followed. Otherwise, probate may be delayed or denied. It is critical that you are represented by a skilled probate attorney serving Chicago with experience representing clients in complex estate matters before the Illinois Probate Court. The attorneys at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing clients in estate matters, including probate, will contests, and estate litigation. If you have concerns related to probate including the requirements of Illinois Probate Act section 7-4- Original proof of foreign will in this State, or any other estate matter, contact us attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.