(755 ILCS 5/Art. VI heading) ARTICLE VI
PROBATE OF WILLS AND ISSUANCE OF LETTERS OF OFFICE
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(755 ILCS 5/6-1) (from Ch. 110 1/2, par. 6-1)
Sec. 6-1.
Duty to file will - altering, destroying or secreting.)
(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.
(Source: P.A. 96-137, eff. 1-1-10.)
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(755 ILCS 5/6-2) (from Ch. 110 1/2, par. 6-2)
Sec. 6-2. Petition to admit will or to issue letters.)
Anyone
desiring to have a will admitted to probate must file a petition
therefor in the court of the proper county. The petition must state, if
known: (a) the name and place of residence of the testator at the time
of his death; (b) the date and place of death; (c) the date of the will
and the fact that petitioner believes the will to be the valid last will
of the testator; (d) the approximate value of the testator's real and
personal estate in this State; (e) the names and post office addresses
of all heirs and legatees of the testator and whether any of them is a
minor or a person with a disability; (f) the name and post office address of the
executor; and (g) unless supervised administration is requested, the
name and address of any personal
fiduciary acting or designated to act pursuant to Section 28-3. When
the will creates or adds to a trust and the petition states the name and
address of the trustee, the petition need not state the name and address
of any beneficiary of the trust who is not an heir or legatee. If
letters of administration with the will annexed are sought, the petition
must also state, if known: (a) the reason for the issuance of the
letters, (b) facts showing the right of the petitioner to act as, or to
nominate, the administrator with the will annexed, (c) the name and post
office address of the person nominated and of each person entitled
either to administer or to nominate a person to administer equally with
or in preference to the petitioner and (d) if the will has been
previously admitted to probate, the date of admission. If a petition for
letters of administration with the will annexed states that there are one
or more persons entitled either to administer or to nominate a person to
administer equally with or in preference to the petitioner, the petitioner
must mail a copy of the petition to each such person as provided in Section
9-5 and file proof of mailing with the clerk of the court.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-3) (from Ch. 110 1/2, par. 6-3)
Sec. 6-3.
Duty of executor to present will for probate.) (a) Within 30 days after
a person acquires knowledge that he is named as executor of the will of
a deceased person,
he shall either institute a proceeding to have the will admitted to probate in the
court of the proper county or declare his refusal to act as executor. If
he fails to do so, except
for good cause shown, the court on its motion or on the petition of any
interested person may deny
him the right to act as executor and letters of office may be issued by
the court as if the
person so named were disqualified to act as executor.
(b) When 30 days have elapsed since the death of the testator and no petition
has been filed to
admit his will to probate, the court may proceed to probate the will without
the filing of
a petition therefor, unless it appears to the court that probate thereof
is unnecessary and failure to
probate it will not prejudice the rights of any interested person. Such
notice of the hearing
on the admission of the will to probate shall be given to the persons in
interest as the court directs.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-4) (from Ch. 110 1/2, par. 6-4)
Sec. 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.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-5) (from Ch. 110 1/2, par. 6-5)
Sec. 6-5. Deposition of witness. When a witness to a will or other party who shall testify to have a will admitted to probate 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 the authorized person to cause that witness or other party to come before the authorized person at such time and
place as the authorized person designates and to take the deposition of the witness or other party 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 or other party is so taken and returned
to the court, the testimony of the witness or other party has the same effect as if the witness or other party testified in the
court from which the commission issued. When the commission is issued to
the officer by official title only and not by name, the seal of the
office attached to the officer's certificate is sufficient evidence of the officer's identity
and official character.
(Source: P.A. 102-167, eff. 7-26-21.)
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(755 ILCS 5/6-6) (from Ch. 110 1/2, par. 6-6)
Sec. 6-6. Proof of handwriting of a deceased or inaccessible witness or a witness with a disability.
(a) If a witness to a will or other party who shall testify to have a will admitted (1) is dead, (2) is blind, (3) is mentally or
physically incapable of testifying, (4) cannot be found, (5) is in active
service of the armed forces of the United States or (6) is outside this
State, the court may admit proof of the handwriting of the witness or other party and such
other secondary evidence as is admissible in any court of record to establish
electronic records or written contracts and may admit the will to probate as though it had been
proved by the testimony of the witness or other party. On motion of any interested person
or on its own motion, the court may require that the deposition of any such
witness or other party, who can be found, is mentally and physically capable of testifying
and is not in the active service of the armed forces of the United States
outside of the continental United States, be taken as the best evidence thereof.
(b) As used in this Section, "continental United States" means the States
of the United States and the District of Columbia.
(Source: P.A. 102-167, eff. 7-26-21.)
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(755 ILCS 5/6-7) (from Ch. 110 1/2, par. 6-7)
Sec. 6-7.
Will to remain with clerk.) All original wills which are admitted
to probate shall remain in the custody of the clerk, unless otherwise ordered
by the court.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-8) (from Ch. 110 1/2, par. 6-8)
Sec. 6-8.
Issuance of letters testamentary.) When a will is admitted
to probate, letters testamentary shall be issued to the executor named
in the will if he qualifies and accepts the office, unless the issuance
of letters is excused.
(Source: P.A. 81-213; 81-788; 81-1509.)
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(755 ILCS 5/6-9) (from Ch. 110 1/2, par. 6-9)
Sec. 6-9.
Failure or refusal to qualify - death, resignation or revocation
of letters - non-designation.) Unless otherwise provided by the will, (a)
if one of several executors named in the will fails or refuses to qualify
and accept the office, letters testamentary shall be issued to the executor
who qualifies and accepts the office, (b) if one of several executors to
whom letters have been issued dies or resigns or his letters are revoked,
the remaining executor shall continue to administer the estate, and (c)
in either event the remaining executor has all powers vested in all the
executors named in the will. If no executor is named in the will or the
named executor fails or refuses to qualify and accept the office or, if
after letters are issued the sole executor or all the named executors die
or resign or their letters are revoked, letters of administration with the
will annexed shall be issued in accordance with the preferences
in Section 9-3 upon petition under Section 6-2 and notice as provided in Section 9-5.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-10) (from Ch. 110 1/2, par. 6-10)
Sec. 6-10. Notice - waiver.)
(a) Not more than 14 days after entry of an
order admitting or denying admission of a will to probate or appointing
a representative, the representative or, if none, the petitioner must
mail a copy of the petition to admit the will
or for letters and a copy of the order showing the date of entry to each
of the testator's heirs and legatees whose names and post office addresses
are stated in the petition. If the name or post office address of any heir
or legatee is not stated in the petition, the representative or, if none,
the petitioner must publish a notice once a week
for 3 successive weeks, the first publication to be not more than 14 days
after entry of the order, describing the order and the date of entry. The
notice shall be published in a newspaper published in the county where the
order was entered and may be combined with a notice under Section 18-3.
When the petition names a trustee of a trust, it is not necessary to publish
for or mail copies of the petition and order to any beneficiary of the trust
who is not an heir or legatee. The information mailed or published under
this Section must include an explanation, in form prescribed by rule of
the Supreme Court of this State, of the rights of heirs and legatees to
require formal proof of will under Section 6-21 and to contest the admission
or denial of admission of the will to probate under Section 8-1 or 8-2.
The petitioner or representative must file proof of mailing and publication,
if publication is required, with the clerk of the court.
(b) A copy of the petition and of the order need not be sent to and notice
need not be published for any person who is not designated in the petition
as a minor or person with a disability and who personally appeared before the court
at the hearing or who filed his waiver of notice.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-11) (from Ch. 110 1/2, par. 6-11)
Sec. 6-11.
Omitted or unnotified heir or legatee.) (a) If
it appears after entry of an order admitting or denying admission of a will
to probate that an heir or legatee was omitted from the petition to admit
the will to probate or, if included in the petition, that notice to him
was not mailed or published as provided in Section 6-10 or 6-20, whichever
is applicable, and that no waiver of notice was filed by the omitted or
unnotified heir or legatee, an amended petition shall be filed under Section
6-2 or 6-20 which shall include the omitted or unnotified heir or legatee.
(b) If the amended petition is filed under Section 6-2, a copy of the
amended petition and the order admitting or denying admission of the will
to probate or notice thereof shall be mailed to or published for the omitted
or unnotified person as provided in Section 6-10, in the same manner as
if the order were entered at the time the amended petition was filed. The
original order admitting or denying admission of the will to probate is
effective as to the omitted or unnotified person as of the date the amended
petition is filed and it is effective as to all other persons, including
creditors, as of the date of its entry.
(c) If the amended petition is filed under Section 6-20, notice of the
hearing on the amended petition shall be mailed or published, as provided
in Section 6-20, to or for the omitted or unnotified person and to all persons
included in any prior petition. In the absence of objections by the omitted
or unnotified person, evidence received at the hearing on the original petition
to admit the will to probate constitutes prima facie proof of the execution
of the will at the hearing on the amended petition. An order admitting
the will to probate on an amended petition filed under Section 6-20 is effective
as to the omitted or unnotified person as of the date of its entry, but
the original order admitting the will to probate is effective as to all
other persons, including creditors, as of the date of its entry.
(Source: P.A. 81-213.)
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(755 ILCS 5/6-12) (from Ch. 110 1/2, par. 6-12)
Sec. 6-12. Appointment of guardian ad litem.)
When an heir or legatee
of a testator is a minor or person with a disability who is entitled to notice under
Section 6-10 at the time an order is entered admitting or denying
admission of a will to probate or who is entitled to notice under Section
6-20 or 6-21 of the hearing on the petition to admit the will, the court
may appoint a guardian ad litem to protect the interests of the ward with
respect to the admission or denial, or to represent the ward at the hearing,
if the court finds that (a) the interests of the ward are not adequately
represented by a personal fiduciary acting or designated to act pursuant
to Section 28-3 or by another party having a substantially identical interest
in the proceedings and the ward is not represented by a guardian of his
estate and (b) the appointment of
a guardian ad litem is necessary to protect the ward's interests.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-13) (from Ch. 110 1/2, par. 6-13)
Sec. 6-13. Who may act as executor. (a) A person who has attained
the age of 18 years, is a resident of the United States, is not of
unsound mind, is not an adjudged person with a disability as defined in this Act, is not currently incarcerated in State or federal prison,
and, except as provided in subsection (c), has not been convicted of a felony is qualified to act as executor.
(b) If a person named as executor in a will is not qualified to act
at the time of admission of the will to probate but thereafter becomes
qualified and files a petition for the issuance of letters, takes oath
and gives bond as executor, the court may issue letters testamentary to
him as co-executor with the executor who has qualified or if no executor
has qualified the court may issue letters testamentary to him and revoke
the letters of administration with the will annexed.
(c) A person who has been convicted of a felony is qualified to act as an executor if: (i) the testator names that person as an executor and expressly acknowledges in the will that the testator is aware that the person has been convicted of a felony prior to the execution of the will or codicil; (ii) the person is not prohibited by law, including Sections 2-6, 2-6.2, and 2-6.6, from receiving a share of the testator's estate; (iii) the person was not previously convicted of financial exploitation of an elderly person or a person with a disability, financial identity theft, or a similar crime in another state or in federal court; and (iv) the person is otherwise qualified to act as an executor under subsection (a). (d) The court may in its discretion require a nonresident executor to furnish
a bond in such amount and with such surety as the court determines
notwithstanding any contrary provision of the will.
(Source: P.A. 103-280, eff. 1-1-24.)
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(755 ILCS 5/6-14) (from Ch. 110 1/2, par. 6-14)
Sec. 6-14.
Power of executor before issuance of letters.) Before issuance of letters to
an executor his power extends to the carrying out of any gift of the decedent's
body or any part thereof, to the burial of the decedent, the payment of
necessary funeral
charges and the preservation of the estate; but if the will is not admitted to probate,
the executor is not liable as an executor of his own wrong, except for his refusal to
deliver the estate to the person authorized by law to receive it or for
waste or misapplication of the estate.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-15) (from Ch. 110 1/2, par. 6-15)
Sec. 6-15.
Executor to administer all estate of decedent.) The executor or
the administrator with the will annexed shall administer all the testate
and intestate estate
of the decedent.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-16) (from Ch. 110 1/2, par. 6-16)
Sec. 6-16.
Power of administrator with the will annexed.) Unless otherwise expressly
provided by the will, an administrator with the will annexed has all the
powers and duties of
the executor under the will, but this does not excuse the administrator
from giving security on his bond.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-17) (from Ch. 110 1/2, par. 6-17)
Sec. 6-17.
Witness to appear for probate - penalty.) It is the duty of a witness to
any will executed in this State to appear before the court at the hearing
on the admission of
the will to probate and testify concerning the execution and validity of
the will unless proof
of will is made by another method as provided in this Act. The court may
attach and punish by
fine and imprisonment, or either, any witness who, without a reasonable excuse, fails to
appear and testify when subpoenaed.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-18) (from Ch. 110 1/2, par. 6-18)
Sec. 6-18.
Will as evidence.) An authenticated copy of a domestic or foreign will and
of the order admitting it or denying it to probate are evidence in any court
in this State.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-19) (from Ch. 110 1/2, par. 6-19)
Sec. 6-19.
Judge as witness.) If a judge is a witness to a will which is required by
law to be proved before him, another judge shall be designated to take the
testimony of witnesses
to the will and to decide whether or not the will shall be admitted to probate.
The judge who
is the witness may proceed to administer the estate unless he is otherwise
precluded therefrom by this Act.
(Source: P.A. 79-328.)
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(755 ILCS 5/6-20) (from Ch. 110 1/2, par. 6-20)
Sec. 6-20. Petition to admit will to probate on presumption of death
of testator - notice.) (a) Anyone desiring to have a will admitted to
probate on the presumption of death of the testator must file a petition
therefor in the court of the proper county. The petition must state, in
addition to the information required by Section 6-2 (other than clauses
(a) and (b)), the facts and circumstances raising the presumption, the
name and last known post office address of the testator and, if known,
the name and post office address of each person in possession or control
of any property of the testator.
(b) Not less than 30 days before the hearing on the petition the
petitioner must (1) mail a copy
of the petition to the testator
at his last known address, to each of the testator's heirs and legatees
whose names and post office addresses are stated in the petition and to
each person shown by the petition to be in possession or control of any
property of the testator, and (2) publish a notice of the hearing on the
petition once a week for 3 successive weeks, the first publication to be
not less than 30 days before the hearing. The notice must state the time
and place of the hearing, the name of the testator and, when known, the
names of the heirs and legatees. The petitioner shall endorse the time
and place of the hearing on each copy
of the petition mailed by him. When the petition names a trustee of a trust,
it is not necessary to mail a copy of the petition to any beneficiary of
the trust who is not an heir or legatee, or to include the name of such
beneficiary in the published notice. If any person objects to the
admission of the will to probate, the court may require that such notice
of the time and place of the hearing as it directs be given to any beneficiary
of the trust not previously notified. The petitioner must file proof
of mailing and proof of publication with the clerk of the court.
(c) A copy of the petition need not be sent to any person not
designated in the petition as a minor or person with a disability who personally
appears before the court at the hearing or who files his waiver of
notice.
(d) When a will is admitted to probate on presumption of the
testator's death, the notice provided for in Section 6-10 is not
required.
(Source: P.A. 99-143, eff. 7-27-15.)
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(755 ILCS 5/6-21) (from Ch. 110 1/2, par. 6-21)
Sec. 6-21.
Formal proof of will.) If a will has been admitted to probate
before notice in accordance with Section 6-4, any person entitled to notice
under Section 6-10 may file a petition within 42 days after the effective
date of the original order admitting the will to probate to require proof
of the will pursuant to this Section. The court must set the matter for
hearing upon such notice to interested persons as the court directs. At the hearing
the proponent must establish the will by testimony of the witnesses as provided
in subsection 6-4 (b) (1) or Section 6-5 or other evidence as provided in
this Act, but not as provided by subsection 6-4 (b) (2) or subsection 6-4
(b) (3), as if the will had not originally been admitted to probate. If
the proponent establishes the will by sufficient competent evidence, the
original order admitting it to probate and the original order appointing
the representative shall be confirmed and are effective as to all persons,
including creditors, as of the dates of their entries, unless there is proof
of fraud, forgery, compulsion or other improper conduct, which in the opinion
of the court
is sufficient to invalidate or destroy the will. The time for filing a
petition to contest a will under Section 8-1 is not extended by the filing
of the petition under this Section if the order admitting the will to probate
is confirmed, but if that order is vacated, the time for filing the petition
under Section 8-2 runs from the date of vacation of the order admitting
the will to probate.
(Source: P.A. 81-213.)
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