Illinois Probate Act 755 ILCS 5/4-15: Debtor as Executor

Typically when writing a will the testator names the person that he (or she) would like to serve as executor of his (or her) estate. While the person named is typically a spouse, parent, or child, the executor can be practically anyone that the testator chooses. In some cases, the testator may name a person who happens to be indebted to the testator. While it may seem as if that would potentially present a conflict of interest, under the Illinois Probate Act a debtor as executor is permissible. If you have questions related to the requirements for serving as an executor, contact an experienced Chicago probate administration lawyer to discuss your concerns.

Under Illinois law, the requirements for serving as an executor include:

• Must be at least 18 years old
• Must be a resident of the United States
• Must not suffer from a mental incapacity
• Must not have a disability as defined by the Illinois Probate Act
• Must not have been convicted of a felony

Under Illinois Probate Act, a debtor may serve as an executor. If a debtor is the executor, it is important that the executor understand that the debt is not erased simply because he or she is the executor. The exception to this rule is if the testator says so in his will, and if without collecting the executor’s debt the estate has sufficient assets to pay debts owed by the estate. If you have concerns related to the executor owing a debt to the decedent, discuss your concerns with a Chicago probate administration lawyer.

The executor is responsible for winding up the affairs of the decedent and distributing his assets to the beneficiaries. Before he can do so, he must be formally appointed by the court. Once this has been done the executor has the legal authority to manage the estate through probate. The executor’s duties include:

• Collecting, securing, and managing estate assets. This may include leasing, selling, mortgaging, or pledging estate property if necessary for the proper administration of the estate.
• Appraising assets. The executor must have an accurate understanding of the value of the estate to know what is available to pay creditors and distribute to the beneficiaries.
• Paying creditors. The executor must pay the debts of the estate, in order of priority, including funeral expenses and expenses related to administration.
• Distributing assets to beneficiaries. With the remaining assets, the executor must distribute gifts to the beneficiaries based on the terms of the will.

As a probate administration attorney in Chicago will explain, before an estate can be closed the executor must provide an accounting to the probate court. The accounting must include details as to all money ad property that can into the estate and that left the estate.

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

The appointment of the debtor of the testator as executor of his will does not extinguish any debt due from the executor to the testator, unless the testator in the will expressly declares his intention to extinguish the debt and unless the estate of the testator without collection of the debt due from the executor is sufficient to discharge all claims against the testator's estate.

The job of an executor can be complex. Not only must the executor handle managing the assets and the finances of your estate, the executor must also manage issues and disputes involving beneficiaries and heirs. Thus, it is important that you take care in deciding who you would like to serve as your executor and to name a successor executor should your executor be unable to serve. The probate administration attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have over 2 decades of experience representing individuals, executors, beneficiaries, and heirs in estate administration matters. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.