Illinois Probate Act 755 ILCS 5/6-1: Duty to File Will - Altering, Destroying or Secreting

When someone passes a way and leaves a will, the decedent’s estate must go through a process called probate before her (or his) assets can be distributed to her beneficiaries. However, someone must first submit the will to the probate court. While the person who is in possession of the will is typically the executor named in the will, it is incumbent upon whoever possesses the will to file it. Intentionally failing to do so is a violation of Illinois law. To learn more about how probate works and the requirements of the Illinois Probate Act, contact an experienced Chicago probate administration lawyer.

The Illinois Probate Act requires that whoever is in possession of a decedent’s will file it with the probate court in the county in which the decedent lived immediately upon the decedent’s death. Refusal to do so is a violation of the law, and an interested party has the right to file a motion compelling the person who has the will to file it.

Furthermore, it is a crime to destroy or alter the will, or to hide it for more than 30 days following the death of the testator. If you do so, you may be charged with a theft of property felony. If you are hesitant about filing the will with the court because you have concerns about its validity, instead of altering, destroying or secreting the will, contact a Chicago probate administration lawyer to discuss your concerns and who will explain the process for filing a will contest.

Once the will is filed with the court, the probate judge will review it and admit it to probate. The judge will also appoint the executor, giving her (or him) the legal right to manage the decedent’s estate and ultimately distribute the estate to the beneficiaries. Before distributing the assets, the executor must collect and appraise the assets. The executor also has the duty to pay outstanding estate debts and expenses from estate assets. Finally, from the assets that remain in the estate after bills and expenses are paid, the executor will transfer ownership of those assets to the beneficiaries according to the terms of the will.

Probate in Chicago typically takes 6-12 months. However, as a probate administration attorney in Chicago will explain, if there are complications such as a will contest, missing heirs, or estate litigation the process can take quite a bit longer.

1. Petition to admit will or to issue letters: Illinois Probate Act, 755 ILCS 5/6-2
2. Duty of executor to present will for probate: Illinois Probate Act, 755 ILCS 5/6-3
3. Admission of will to probate - testimony or affidavit of witnesses: Illinois Probate Act, 755 ILCS 5/6-4

(a) Immediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.

(b) If any person wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator is known to him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense. The 30-day period does not apply to the Secretary of State when acting pursuant to Section 5.15 of the Secretary of State Act.

If you are an executor, beneficiary, or heir and have questions about the duty to file will, or questions about the probate process, contact a skilled probate administration attorney serving Chicago to discuss your concerns. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing individuals, executors, beneficiaries, and heirs in estate matters. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.