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Illinois Probate Act 755 ILCS 5/6-4: Admission of Will to Probate - Testimony or Affidavit of Witnesses

Probate is the legal process that occurs when someone passes away leaving a will. Before the decedent’s assets can be disbursed to the beneficiaries named in the will, the will must be proven. In other words, the Probate Court in Chicago must be satisfied that the will is valid. This is accomplished by the witnesses who were present at the signing of the will providing statements indicating that they were present at the signing of the will. While there are several ways that the witnesses can provide such statements, one way is for them to appear in the court and testify under oath. If a witness is subpoenaed to testify, he or she must do so. To learn more about the requirements for being appointed executor or administrator, including the rules outlined in Illinois Probate Act 755 ILCS 5/6-4, Admission of will to probate - testimony or affidavit of witnesses, contact an experienced Chicago probate lawyer at the Law Offices of Stephen Bilkis & Associates.

Probate

Probate is the process of proving that a will is valid. In Chicago, there are three ways to prove that a last will and testament is authentic.

  • Self-proving. A self-proving will is one where two witnesses execute an affidavit in the presence of the testator that states that they observed the testator sign the will and that they believed the testator to have been of sound mind when he or she signed the will.
  • Testify in court. If the will is not self-proving, then under section 6-4 of the Illinois Probate Act, the two witnesses must be located and summoned to court. Under oath the witnesses must state that they were present and observed the testator sign the will, that the will was attested by the witnesses, and that they believed that the testator was of sound mind at the time he signed the will. If you are a witness and are subpoenaed to testify in court, you must attend the hearing. If you cannot make the hearing, discuss your conflict with an experienced Chicago probate attorney.
  • Affidavit. Another option for instances in which the will is not self-proving is an affidavit which is signed by the witness at or after the time of attestation, and is attached to the will or is attached to a copy of the will.

Just because a will is self-proving or is otherwise proved, does not mean that the will is valid and will be admitted to probate. Interested parties have the right to object to a will. The court will not admit a will to probate if there is evidence that a will was based on duress, undue influence, or fraud.

Administration

Once a will is admitted to probate, the Chicago Probate Court judge will formally appoint the executor and issue him (or her) letters testamentary giving him legal authority to act on behalf of the estate. There are three major steps that the executor must complete during the administration process: Inventorying the estate, paying estate bills, and distributing estate assets.

Inventorying the estate. The executor must determine the property that is part of the estate. Probate property may include personal property such as household items, clothes, jewelry, and vehicles. The estate might also include financial accounts such as checking and savings accounts and brokerage accounts. Depending on how it is titled, the decedent’s house or condo as well as other real estate would also be part of the estate. The executor must determine the value of the property in the estate at the time of the decedent’s death.

Pay estate debts. In addition to ensuring that the decedent’s property is distributed according to the terms of the will, the Probate Court is also concerned about ensuring that the decedent’s debts are paid. The executor has a duty to pay all valid debts prior to distributing estate assets.

Distribute estate assets. The final major duty of the executor is to distribute estate assets to the beneficiaries named in the will.

Will to Remain With Clerk

It is important for all those who have an interest in the administration of a will to understand that the original will must be filed with the Probate Court and it will remain with the clerk permanently unless the court directs otherwise.

If you have questions related to filing a will with the Probate Court, or any of the other procedural requirements related to probate or the administration of a loved one’s estate, contact an experienced probate attorney in Chicago.

Related Statutory Provisions
  1. Petition to admit will or to issue letters: Illinois Probate Act, 755 ILCS 5/6-2
  2. Letters revoked when will is produced: Illinois Probate Act, 755 ILCS 5/6-3
  3. Who may act as executor: Illinois Probate Act, 755 ILCS 5/6-13
  4. Who may act as administrator: Illinois Probate Act, 755 ILCS 5/9-1
Illinois Probate Act, Section 6-4- Admission of Will to Probate - Testimony or Affidavit of Witnesses

(a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless 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. The proponent may also introduce any other evidence competent to establish a will. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless 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.

(b) The statements of a witness to prove the will under subsection 6-4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.

Contact the Law Offices of Stephen Bilkis & Associates

The probate attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have extensive experience working closely with executors, estate administrators, personal representatives and other fiduciaries in estate matters. If you have concerns related to the administration of an estate including the requirements of Illinois Probate Act section 6-4- Admission of will to probate - testimony or affidavit of witnesses, contact an experienced attorney at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.

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