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Illinois Probate Act 755 ILCS 5/12-3: Surety

The representative is the person appointed by the court to manage the estate of a deceased person. Depending on the circumstances, the representative may be called an executor, an estate administrator, or an estate administrator. In each case, the representative is appointed by the Illinois Probate Court in Chicago that has jurisdiction over the estate. However, before the court will appoint a representative, the judge must be certain that the petitioner is qualified. Furthermore, the court my require surety. If you are an executor nominated in a loved one’s will, beneficiary, or an heir and you have questions related to the job of a representative, including the requirements of the Illinois Probate Act section 12-3- Surety, contact the experienced Chicago estate administration attorneys at the Law Offices of Stephen Bilkis & Associates.

Who may act as Representative

When a decedent passes away and leave a will, typically the will will state the decedents preference for who is to serve as his representative or executor. If there is not will, or the will is silent on the matter, then certain eligible individuals have the right to seek to be appointed representative. In all cases, before a person has the legal right to serve as representative, he or she must petition the court.

Qualifications. Only those who meet the following requirements may serve as representative:

  • 18 years old
  • Resident of the United States
  • No mental incapacity
  • No disability as defined in the Probate Act
  • Not a convicted felon

In other words, it is not enough that someone was named in the will to serve as executor. The person must also be qualified. 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.

Eligibility. In the absence of a will, or where no one was named as executor in the will, or where the person named in the will is not qualified, able, or willing to serve, then certain others have the right to petition the court to be appointed representative. The priority is as follows:

  • Surviving spouse
  • Beneficiaries who are children of the decedent
  • Other beneficiaries
  • Decedent’s children
  • Decedent’s grandchildren
  • Decedent’s parents
  • Decedent’s siblings

If the court approves a petition, it will issue the petitioner a document called, “letters.” Letters, also letters testamentary or letters of administration, is document issued by the Probate Court can be used as evidence that a person has the legal right to act on behalf of an estate. For example, the representative will need to access the decedent’s financial accounts. Unless the representative has letters to present to bank officials, the bank will not allow the representative access to the decedent’s accounts and will not allow the representative to open accounts on behalf of the estate.

Oath and Bond

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. Under Illinois Probate Act, section 12-3- Surety, each bond must have as security thereon not less than 2 sureties acceptable to the Probate Court or one surety company qualified to do business in Illinois and acceptable to the court.

Duties of the Representative

The main responsibilities of a representative is to take all the steps necessary to settle the decedent’s estate, pay estate debts, and distribute estate assets to beneficiaries and heirs. First the representative must identify estate assets, inventory and appraise them, and file the inventory with the Probate Court.

Next, the representative must pay estate debts including debts the decedent had outstanding when he or she passed away, as well as expenses related to managing the estate. As an experienced estate administration attorney in Chicago will explain, if the decedent or estate owes taxes, the representative must pay those as well.

Finally, the representative must distribute assets to the beneficiaries. In the case of an intestate decedent, the estate would go to his or her heirs based on the rules of intestate succession.

Related Statutory Provisions
  1. Individual representative; oath and bond: Illinois Probate Act, 755 ILCS 5/12-2
  2. When security excused or specified: Illinois Probate Act, 755 ILCS 5/12-4
  3. Deposit in lieu or reduction of bond: Illinois Probate Act, 755 ILCS 5/12-7
  4. Additional bond for proceeds of sale or mortgage: Illinois Probate Act, 755 ILCS 5/12-9
  5. Further bond or security: Illinois Probate Act, 755 ILCS 5/12-10
Illinois Probate Act,  Section 12-3- Surety

Every bond provided for in this Article must have as security thereon not less than 2 sureties acceptable to the court or one surety company qualified to do business in this State and acceptable to the court.

Contact the Law Offices of Stephen Bilkis & Associates

Estate administration is the process of settling a decedent’s estate that is managed by court appointed representative. Before a representative can move forward with his (or her) estate management duties, he must follow all of the procedural requirements, including the requirements of Illinois Probate Act, section 12-3- Surety. If you have questions or concerns related to the appointment of a representative, talk to an experienced estate administration attorney serving Chicago. The attorneys at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing clients in estate matters, including matters related to probate and administration. Contact an attorney in our office at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.

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