Is a Will a Public Record in Illinois?

By Joseph Scrofano

The law typically refers to individuals who draft wills as “testators.” In a will, the testator appoints a personal representative, sometimes called executor, to oversee the administration of the estate upon the testator’s death. When the testator dies, the personal representative must file the will for probate. State law governs probate and varies from state to state. In Illinois, once a will is filed for probate, it becomes a public record like any other court proceeding.

The law typically refers to individuals who draft wills as “testators.” In a will, the testator appoints a personal representative, sometimes called executor, to oversee the administration of the estate upon the testator’s death. When the testator dies, the personal representative must file the will for probate. State law governs probate and varies from state to state. In Illinois, once a will is filed for probate, it becomes a public record like any other court proceeding.

Will Creation

The Illinois Probate Act sets forth the requirements for creating a will in Illinois: the testator must be 18 years or older, and must be of sound mind and memory. To execute a valid Illinois will, it must be written and signed by the testator in the presence of two witnesses. The witnesses cannot be interested parties such as creditors or beneficiaries.

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Estate

In Illinois, smaller estates are exempt from probate. Generally, a personal representative must probate an estate that is larger than $100,000. This calculation does not include real property, and all real estate held solely in the decedent’s name must be probated. For small estates, the personal representative may file a small estate affidavit, though the personal representative must still file the will with the clerk of the court located in the region of the testator’s last residence.

Probate

Probate in the state is governed by the Illinois Probate Act. Probate is a judicial proceeding in which a probate judge determines whether the will is legal and valid, and oversees the entire process to make sure that the executor follows Illinois law. If necessary, the probate court decides any disputes that arise over the will that the executor cannot settle. In Illinois, the county in which the decedent last resided typically has jurisdiction over the decedent's probate process.

Public Record

Once the personal representative files the will -- whether it's probated or not -- the will becomes a public record. As such, any person can obtain a copy of the will from the clerk of the court where the personal representative filed it. Some courthouses may allow people to make a copy at the courthouse, while others may allow individuals to request copies by mail.

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Is a Will a Legal Record in Illinois?

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Do Wills Have to Be Presented to the Court?

Estate planning requires consideration of all relevant state laws and statutes. Each state has its own set of laws for probate. Some states have specialized courts that exclusively handle probate, while others have courts of general jurisdiction that handle probate in addition to civil, criminal and family matters. While state laws may differ in the details, probate laws do have some similar general principles.

What Happens When a Will Is in Probate?

Probate is the process in which the property of the deceased is divided and administered to his family after death. This process can be streamlined through a will -- a legal document that directs how the deceased, also known as the testator, wants his property to be handled by the courts. The testator will name beneficiaries and the property the beneficiaries will take. During the probate process, the court will do everything in its power to follow the directions and intent of the testator as outlined in the will.

When Does Last Will & Testament Have to Be Filed in Probate?

When someone dies, leaving a will, it must be filed in the appropriate probate court to be legally effective. The court must verify that it is, indeed, the decedent's will and that it has been property executed under state law. The personal representative, or executor, named in the will cannot begin estate administration until probate has been opened.

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