Is a Will a Legal Record in Illinois?

by Joseph Scrofano

A will is a legal record in Illinois once the executor files it for probate. In a will, the estate owner must appoint a personal representative, called executor, to manage and transfer the estate’s assets upon the estate owner’s death. The first thing an executor must typically do is file the will for probate once the estate owner passes away. Generally, in Illinois, court documents, including probate documents, are public, legal records.

Will Execution

To execute a valid legal will in Illinois, the testator, or person drafting the will, must follow the requirements set out in the Illinois Probate Act, which requires that the testator be 18 years or older and be of sound mind and body -- in other words, competent to make the decisions necessary to create the will. Finally, the document itself must be written, and the testator must sign it with two uninterested witnesses present who also sign the document.

Probate

Under probate, the executor first validates the will before a probate judge, then administers the estate by following the instructions in the will. The probate judge oversees the executor’s actions to ensure she follows all Illinois laws properly. The executor takes an inventory of all of the estate’s assets, and notifies all interested parties and creditors. Finally, if the executor cannot resolve certain disputes, the probate court steps in and resolves these matters.

Small Estate

Like almost all states, Illinois has a simplified proceeding for small estates. The estate must generally be less than $100,000 -- not including real property like houses and land. However, even if the estate is small, if the decedent owned real property solely in her name, then that property must go through probate to be conveyed to the beneficiary stated in the will. Even in small estate probate, however, the will becomes a legal record because the executor must file it with the clerk of the court with the small estate affidavit required to use the simplified procedures.

Legal Record

All documents filed with a court of law are considered a legal record, so once a will is filed with the court, it becomes a legal record. Illinois does not require that a testator record the will once its drafted, however, so while the testator remains alive, the will is not a public legal record. In that case, it is a legal document but not a “record” in that sense.