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Illinois Probate Act 755 ILCS 5/6-5: Deposition of Witness

Probate is the process of authenticating a last will and testament. The Chicago Probate Court judge presiding over a probate case will not allow a will to be probated if it is not valid. Thus, before a will is admitted to probate and before the executor of an estate will be issued letters allowing him (or her) to move forward with the administration of an estate, the judge must review evidence of the will’s authenticity. Witnesses may have to be subpoena to testify in court under oath. However, in some cases the witnesses may not be able to come into court. If you have questions related to the process of authenticating a will, including the requirements of the Illinois Probate Act section 6-5- Deposition of witness, contact the skilled Chicago probate attorneys at the Law Offices of Stephen Bilkis & Associates who can explain who probate works.

Probate Process

In Chicago, a probate proceeding begins when someone who wants a will probated submits it to the Probate Court along with a petition for probate. The proponent of the will is typically the person who the deceased individual named as executor in the will. The court will then review the will, review evidence that supports or opposes admitting the will, and determine if it is valid.

In order for a will to be valid in Illinois, there are certain formal requirements that must be followed. There must be two disinterested witnesses. This means that two individuals must be present when the testator signs the will, must witness the testator signing it, and the witnesses must also sign the will.

Oftentimes during probate the judge will only have to review the will and the statements of the two witnesses. This is the case if the will is self-proving. If the will is not self-proving, then the judge may require the witnesses to appear in court and testify under oath as to the authenticity of the will. If a witness is not available to appear in court, then under section 6-5 of the Illinois Probate Act, Deposition of witness, the witness may be permitted to testify by way of deposition.

Whether the will is self-proving, the witnesses testify in court, or the witnesses testify through depositions, the evidence that the court needs is that the witnesses observed the testator sign the will and that the witnesses believe that at the time the testator was not suffering a mental incapacity such that he or she did not have the testamentary capacity to execute a will.

Deposition of Witness

If the testimony of a witness to a will is needed, but the person lives outside of the jurisdiction and is unable to come to court to testify, the law allows the witness to testify. A copy of the will would be sent to a judge, magistrate, mayor, or other authorized person in the jurisdiction where the witness is. The judge or other authorized person would then call in the witness for the deposition. The judge would depose the witness under oath based on the questions that were submitted along with the will.

As quickly as possible the person taking the deposition must return the deposition to the Probate Court that requested it. As an experienced Chicago probate attorney will explain, the testimony of the witness taken by way of deposition would have the same effect as if the witness appeared in court.

Objections to Probate

If someone believes that despite the fact that the will appears to have been properly executed, the will does not in fact represent the true wishes of the decedent, that person can file a will challenge. However, in order to challenge a will, you must have legal standing. Only interested parties have the right to contest the validity of a will. Interested parties include beneficiaries that the testator named in the will, as well as heirs who would inherit if the will is found to be invalid. To start the process of challenging the validity of a will, the objector must file a petition with the probate court, and must send notice to the executor and each beneficiary or heir listed in the petition to admit the will to probate.

If you have concerns related to the validity of a will of a loved one, contact an experienced probate attorney serving Chicago as in order for your challenge to be successful you must have evidence there the will was made based on fraud, undue influence, duress, or some other unlawful circumstance.

Related Statutory Provisions
  1. Petition to admit will or to issue letters: Illinois Probate Act, 755 ILCS 5/6-2
  2. Witness to appear for probate - penalty: Illinois Probate Act, 755 ILCS 5/6-17
Illinois Probate Act, Section 6-5- Deposition of Witness

When a witness to a will resides outside the county in which the will is offered for probate or is unable to attend court and can be found and is mentally and physically capable of testifying, the court, upon the petition of any person seeking probate of the will and upon such notice of the petition to persons interested as the court directs, may issue a commission with the will or a photographic copy thereof attached. The commission shall be directed to any judge, notary public, mayor or other chief magistrate of a city or United States consul, vice-consul, consular agent, secretary of legation or commissioned officer in active service of the armed forces of the United States and shall authorize and require him to cause that witness to come before him at such time and place as he designates and to take the deposition of the witness on oath or affirmation and upon all such written interrogatories and cross-interrogatories as may be enclosed with the commission. With the least possible delay the person taking the deposition shall certify it, the commission, and the interrogatories to the court from which the commission issued. When the deposition of a witness is so taken and returned to the court, his testimony has the same effect as if he testified in the court from which the commission issued. When the commission is issued to the officer by his official title only and not by name, the seal of his office attached to his certificate is sufficient evidence of his identity and official character.

Contact the Law Offices of Stephen Bilkis & Associates

If you are an executor, beneficiary, or other interested party in a probate proceeding and you have questions or concerns related to admitting a will to probate, contact a probate attorney serving Chicago at the Law Offices of Stephen Bilkis & Associates. Our skilled attorneys have decades of experience representing clients in complex probate and estate matters before the Illinois Probate Court. If you have concerns related to probate including the requirements of Illinois Probate Act section 6-5- Deposition of witness, estate litigation, or any other estate matter, contact one of our skilled attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.

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