10 Common Misconceptions About Illinois Probate Court:
What You Need to Know

Many people have preconceived notions about Illinois probate court that aren’t entirely accurate. Understanding the realities of the Illinois probate process can help families better prepare for estate planning and manage expectations during an already difficult time. Let’s clear up some of the most common misconceptions about probate in Illinois.

Table of Contents

• Misconception #1: All Assets Must Go Through Illinois Probate
• Misconception #2: Illinois Probate Always Takes Years to Complete
• Misconception #3: Probate Consumes Most of the Estate’s Value
• Misconception #4: If There’s a Will, Illinois Probate Isn’t Necessary
• Misconception #5: Probate Records Are Confidential
• Misconception #6: Handwritten Wills Are Valid in Illinois Probate
• Misconception #7: The State Takes Everything if You Die Without a Will
• Misconception #8: An Executor Can Act Immediately After Death
• Misconception #9: Out-of-State Property Isn’t Subject to Illinois Probate
• Misconception #10: Creditors Can Be Ignored if There’s Not Enough Money
• Conclusion: Navigating Illinois Probate Successfully

Misconception #1: All Assets Must Go Through Illinois Probate

Perhaps the most widespread misconception is that every asset owned by a deceased person must pass through Illinois probate court. In reality, many assets can transfer to new owners without any court involvement.

Assets That Typically Avoid Illinois Probate:

• Property held in joint tenancy with right of survivorship
• Assets with designated beneficiaries (i.e., life insurance policies, retirement accounts, transfer-on-death accounts)
• Assets held in properly established trusts
• Small estates with personal property valued at less than $100,000 (which may qualify for a simplified “Small Estate Affidavit” process)

For example, if your home is owned jointly with your spouse with right of survivorship, that property will automatically transfer to your spouse upon your death without going through probate in Illinois.

Misconception #2: Illinois Probate Always Takes Years to Complete

While probate can be lengthy, the idea that Illinois probate always takes years is exaggerated. A straightforward probate case with minimal disputes can often be completed within 9-12 months in Illinois.

The timeline for Illinois probate depends on several factors:

• Estate complexity
• Whether the will is contested
• Court backlog in your particular Illinois county
• Efficiency of the executor
• Tax issues that need resolution

Counties like Cook County typically experience more delays than less populous Illinois counties. Recent data shows that simple probate cases in DuPage County might conclude in as little as 6-8 months, while more complex estates in Cook County could take 12-16 months. However, even in busy jurisdictions, the Illinois probate process doesn’t necessarily drag on for years unless complications arise.

Misconception #3: Probate Consumes Most of the Estate’s Value

Some people fear that Illinois probate costs will eat up most of an estate’s value. While probate does involve expenses, they typically don’t consume a majority of the estate.

In Illinois, probate costs usually include:

• Court filing fees (generally a few hundred depending on the county)
• Administrator/Executor fees (can be waived when a family member serves)
• Attorney fees (typically hourly and can vary based on complexity of the estate)
• Publication costs for legal notices (approximately $250-$300)

For most Illinois estates, these costs total somewhere between 3-7% of the estate’s value. This is significantly less than the 50% or more that some people fear.

Misconception #4: If There’s a Will, Illinois Probate Isn’t Necessary

Having a valid will doesn’t mean Illinois probate can be avoided. In fact, a will must go through probate to be legally validated and executed in Illinois.

What a will does is direct how assets should be distributed during the Illinois probate process—it doesn’t circumvent the process itself. However, a clear, properly executed will can make the Illinois probate process smoother and faster than dying intestate (without a will).

Misconception #5: Probate Records Are Confidential

Unlike many private legal matters, probate proceedings in Illinois are generally part of the public record. This means that the contents of the will, the value of assets, and the identities of beneficiaries become public knowledge once filed with the Illinois probate court.

For those concerned about privacy, this is one legitimate reason to consider Illinois probate-avoidance strategies like revocable living trusts. Trust documents and the assets they contain generally remain private, offering a level of confidentiality that probate cannot.

Misconception #6: Handwritten Wills Are Valid in Illinois Probate

Unlike some states, Illinois does not recognize holographic (handwritten) wills unless they meet all the formal requirements of an ordinary will. For a will to be valid in Illinois probate, it must be:

• Signed by the testator
• Witnessed by two individuals
• Include the required attestation language

Simply writing down your wishes without these formalities will not create a valid will for Illinois probate purposes. This highlights the importance of proper estate planning with qualified legal guidance.

Misconception #7: The State Takes Everything if You Die Without a Will

If someone dies without a will in Illinois (intestate), their assets don’t automatically go to the state. Illinois has specific intestate succession laws that determine who inherits, typically following this order:

1. Surviving spouse and children (with specific distribution percentages)
2. Parents and siblings if no spouse or children exist
3. More distant relatives if no closer relatives exist

Only when absolutely no legally recognized heirs can be found does the estate “escheat” to the state of Illinois—an extremely rare occurrence. The Illinois State Treasurer’s Office actively searches for heirs before any assets would be claimed by the state.

Misconception #8: An Executor Can Act Immediately After Death

Being named executor in a will doesn’t automatically grant authority to act in Illinois. In the Illinois probate process, an executor must first be formally appointed by the probate court and issued “Letters of Office” before they have legal authority to:

• Manage estate assets
• Access financial accounts
• Pay debts
• Distribute property

This appointment process typically takes several weeks from the initial filing. During this waiting period, the nominated executor has very limited legal authority over estate matters, which underscores the importance of planning for immediate post-death needs through other mechanisms.

Misconception #9: Out-of-State Property Isn’t Subject to Illinois Probate

While real estate is governed by the laws of the state where it’s located (requiring “ancillary probate” in that state), the deceased’s legal residence determines which state handles the main probate process.

If the deceased was an Illinois resident, their personal property goes through Illinois probate regardless of where it’s physically located. For example, if an Illinois resident owns a vacation home in Wisconsin, the main probate would occur in Illinois, but a secondary probate proceeding would be required in Wisconsin specifically for that real estate.

Misconception #10: Creditors Can Be Ignored if There’s Not Enough Money

Executors and Administrators in Illinois have a legal duty to notify creditors and pay valid debts before distributing assets to beneficiaries. If an Illinois estate has insufficient funds to pay all debts, state law establishes a priority order for payments.

Representatives who distribute assets without following these Illinois probate rules may be personally liable for creditor claims. Additionally, Illinois requires publication of notice to creditors, giving them six months to file claims against the estate.

Conclusion: Navigating Illinois Probate Successfully

Understanding the realities of Illinois probate can help families better prepare for the future and manage expectations during an already difficult time. While probate isn’t always as costly or time-consuming as its reputation suggests, proper estate planning can still help minimize court involvement and maximize what passes to your loved ones.

For specific guidance on your situation, consulting with an Illinois estate planning attorney is always recommended. They can provide advice tailored to your unique circumstances and the current state of Illinois probate law, potentially saving your heirs significant time, money, and stress.

Contact us at contact@jlonglaw.com or 312-344-3644 to discuss your particular case.