Illinois Probate Act 755 ILCS 5/12-2: Individual Representative; Oath and Bond

The death of a loved one is always difficult for family and friends. Settling the decedent’s estate and distributing asset can be particularly challenging. The Chicago estate administration lawyers at the Law Offices of Stephen Bilkis & Associates have decades of experiences representing clients with skill and compassion during these difficult times. Under Illinois law, when someone passes away a representative is appointed by the Illinois Probate Court to oversee the management of the decedent’s estate. This is referred to as estate administration. During administration the representative is responsible for completing activities to ensure that all of the decedent’s debts are paid and that his property is distributed to the appropriate people—the beneficiaries and heirs. Whether you are an executor or a beneficiary, it is important to understand the requirements related to being appointed a representative, including the requirements of Illinois Probate Act, section 12-2- Individual representative; oath and bond. An experienced Chicago estate administration lawyer can help ensure that you understand the process.

According to Illinois law, a representative is defined as an executor, administrator, or an administrator to collect. However, before the Probate Court will appoint a petitioner to serve as representative, it will confirm that he or she is qualified. There are 4 requirements:

• The petitioner must at least 18 years old
• The petitioner must live in the United States
• The petitioner must not be mentally incapacitated
• The petitioner must not suffer from a disability as defined in the Probate Act
• The petitioner must not be a convicted felon

In other words, being named executor or representative in a will does not automatically mean that you will be appointed. He or she still must meet the statutory standard as to who may act as representative. If you have concerns as to whether or not you or someone else meets the requirements to act as executor, discuss your concerns with a skilled estate administration lawyer in Chicago.

Anyone who wishes to be named representative of an estate must file a petition with the Chicago area Probate Court that has jurisdiction over the estate. Even if the decedent’s will nominates executor, the nominated executor must file a petition. If the petitioner is eligible and qualified, then the court will issue an order appointing the representative and issue the representative a document called “letters.”

Before the appointed representative can start the activities related to managing an estate, he or she must take an file an oath or affirmation that he or she will do the job in a manner that is consistent with the law. In addition, the representative must file a written bond unless the court waives the requirement. However, the requirement of filing a written bond can be excused by the will. The purpose of the bond is to insure that the representative carries out his or her duties according to the terms of the will and in accordance with the law.

The case of Erslev v. Estate of Meyers, 2015 IL App (5th) 140431-U (Ill. App., 2015), involved a petition to remove an executor. One ground for removal advanced by the petitioners was the executor's failure to file a written bond in the statutorily required amount as required by Illinois Probate Act, section 12-2- Individual representative; oath and bond. However, section 12-2 provides an exception to the bond requirement where the bond is excused by the will. In this case the decedent's will provides as follows: "I direct that no surety or other security shall be required on any official bond required of [him] as executor." As a result, the executor was not required to file a written bond unless ordered to do so by the trial court. The court did not issue an order requiring the executor to file a written bond prior to the executor agreeing to increase the bond amount at a later hearing. Thus the court did not err when refusing to remove the executor.

Once the representative has been appointed, and any requirement bond filed, he or she must go about the business of settling the decedent’s estate includes.

The representative must first take control of the estate assets and secure them. He or she must them inventory them, appraise them, and file the inventory with the Probate Court. Next the representative must pay debts. This includes debts the decedent had at the time of his or her death as well as bills associated with the management of the estate. Finally, the once estate debts are paid, the representative must distribute the assets to the beneficiaries named in the will according to the terms of the will. If the decedent did not leave a will, then estate assets are to be distributed to the decedent’s heirs based on Illinois’ intestacy rules.

1. Surety: Illinois Probate Act, 755 ILCS 5/12-3
2. When security excused or specified: Illinois Probate Act, 755 ILCS 5/12-4
3. Amount of bond: Illinois Probate Act, 755 ILCS 5/12-5
4. Waiver or reduction of bond of representative of ward in certain cases: Illinois Probate Act, 755 ILCS 5/12-6
5. Deposit in lieu or reduction of bond: Illinois Probate Act, 755 ILCS 5/12-7

(a) Except as provided in subsection (b), before undertaking the representative's duties, every individual representative shall take and file an oath or affirmation that the individual will faithfully discharge the duties of the office of the representative according to law and shall file in and have approved by the court a bond binding the individual representative so to do. The court may waive the filing of a bond of a representative of the person of a ward or of a standby guardian of a minor or person with a disability.
(b) Where bond or security is excused by the will or as provided in subsection (b) of Section 12-4, the bond of the representative in the amount from time to time required under this Article shall be in full force and effect without writing, unless the court requires the filing of a written bond.

Generally, in his or her will the testator nominates a trusted individual to serve as his representative. However, it is important to understand the qualifications for serving as an executor and the responsibilities of the role, as well as other statutory requirements. If you have questions about the requirements, contact an experienced estate administration lawyer serving Chicago to discuss your concerns. The experienced attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in estate matters in the Illinois Probate Court and understand the requirements of Illinois Probate Act, section 12-2- Individual representative; oath and bond. Contact an attorney in our office attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.