Illinois Probate Act 755 ILCS 5/7-5: Effect of Probate of Foreign Will

Illinois, just like every other state, has laws related to what is required to make a will valid and what is required for probating a will and administering an estate. If a decedent who is an Illinois resident passes away leaving will that was executed in another state or in another country, that will is considered “foreign” will. While the will can still be probate by the Illinois Probate Court and the court would still have jurisdiction over the decedent’s estate, the Illinois Probate Court still must ensure that the will is authentic and valid. If you are an executor nominated in a loved one’s will, beneficiary, or an heir and you have questions related to probating a will, including the requirements of the Illinois Probate Act section 7-5- Effect of probate of foreign will, contact the experienced Chicago probate attorneys at the Law Offices of Stephen Bilkis & Associates.

Probate in Chicago is all about making sure that the will is authentic. In order to execute will in Illinois, the will must be signed by the testator in the presences of two witnesses who must also sign the will. By signing the will, the witness are confirming that they observed the testator sign the will and that they believe that the testator had testamentary capacity—meaning that he or she was of “sound mind.”

When the testator passes away and the executor submits the will along with a petition for probate, the judge will focus on the two witnesses to provide evidence as to the authenticity of the will. In the case of self-proving wills, the process is pretty simple. A self-proving will includes a signed statement by the witnesses that is a part of the will in which the witnesses state that they observed the testator sign the will and in they confirm their belief that the testator was of sound mind when he or she signed the will. If the will is not self-proving, then the probate court judge will require he witnesses to give testimony. Ideally, the witnesses will appear at the probate hearing and testify. If the witnesses are outside of the jurisdiction, the judge can allow witness testimony via deposition. To learn more about the process for gathering testimony from witnesses in a probate matter, contact an experienced Chicago probate attorney.

If the decedent’s will was executed in another state our country, then the process is different. The requirements for executing will vary across jurisdictions, as do the rules related to probate. However, the Illinois Probate Court will admit a foreign will to probate as long as any of the following conditions is met:

• The will had been admitted to probate outside of Illinois. In other words if a court of another state or country had already found the will to be valid and admitted it to probate, the Illinois Probate admit the will.
• The will was executed in a manner consistent with the Illinois Probate Act. If the will was executed with the same formalities that Illinois requires, the Probate Court has a reason to be confident that it is valid.
• The will was executed in accordance with the law of the jurisdiction where the will was executed.
• The will was signed by the testator and was executed in accordance with the law of the place where the testator resided.

Under section 7-5 of the Illinois Probate Act, Effect of probate of foreign will, if the Illinois Probate Court admits a foreign will to probate, doing so has the same impact as the admission to probate of a domestic will. Upon admission of a foreign will, the court will also issue letters of administration, allowing the executor to proceed with settling the testator’s estate.

Note that even if the requirements for probate have been met, regardless of whether the will is domestic or foreign, if there is evidence of fraud or some other type of illegal activity surrounding the making of the will, it will not be admitted to probate.

Whether the will is domestic or foreign, Illinois law allows will contests. If someone believes that a will is not valid and the person has standing, he or she can file an objection to probate. The judge must listen to properly filed objections to probate. As a Chicago probate attorney will explain, according to section 8-1 of the Illinois Probate Act, Contest of admission of will to probate; notice, to start the process of contesting a will, the petitioner with standing must file a petition with the probate court having jurisdiction over the estate.

While there may be a variety of people who believe that a will is unfair or invalid, under Illinois law only people who have a direct, immediate financial interest in the matter. This class of people would include beneficiaries and heirs. Beneficiaries are those who are named in the will. Heirs are those who would stand to inherit if there was no will.

Common grounds for objecting to a will include lack of testamentary capacity, undue influence, duress, fraud, and improper execution.

• Lack of testamentary capacity. Under the Illinois Probate Act in order to create a valid will, the testator must have been “of sound mind and memory.” This means that at the time that the testator executed the will, he (or she) must not have suffered from a mental incapacity such that he did not understand what it means to make a will, a general idea of the value and contents of his estate, and who his heirs are.

• Undue influence. A will would not be valid based on undue influence if someone illegally manipulated the testator to make a will favorable to that person. Typically, the person who exerted the influence was in some sort of position of power or influence over the testator who was vulnerable.
• Duress. Duress involves the use of some sort of threat—mental or psychological—to force the testator to make a disposition in his or her will in favor of the person exerting the duress.

If you believe that the will of loved one is not valid and wish to file an objection, discuss the process with an experienced probate attorney in Chicago.

1. Foreign will admitted to probate: Illinois Probate Act, 755 ILCS 5/7-1
2. Procedure for probate of foreign will: Illinois Probate Act, 755 ILCS 5/7-2
3. Proof of foreign will by copy: Illinois Probate Act, 755 ILCS 5/7-3
4. Original proof of foreign will in this State: Illinois Probate Act, 755 ILCS 5/7-4

The admission to probate in this State of a will executed and proved in the manner provided by this Article has the same effect in all respects as the admission to probate of a domestic will and letters of office may be issued unless the issuance of letters is excused.

If you are a beneficiary or an heir and would like to file an objection to probate, it is important that you contact a probate attorney serving Chicago immediately to ensure that you follow proper procedure. The attorneys at the Law Offices of Stephen Bilkis & Associates have over 20 years of experience representing clients in estate matters, including probate, will contests, and estate litigation. If you have concerns related to probate including the requirements of Illinois Probate Act section 7-5- Effect of probate of foreign will, contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.