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As estate planning attorneys in Downers Grove, we understand how important it is for families to know what happens after a loved one passes away. One of the most critical roles in the probate process is the executor, also known in Illinois as the personal representative. Many of our clients are appointed as executors in a will without fully realizing the responsibilities that come with the role. Executors carry significant legal duties under Illinois law, and failure to perform those duties properly can lead to more work, longer administration, higher costs, and even personal liability. By learning what an executor must do, you can arm yourself with the right information to ensure that one is able to handle the estate according to the decedent’s wishes and the law.
In Illinois, executors are appointed by the probate court after the will is filed and the judge has admitted the will to probate. The Illinois Probate Act, 755 ILCS 5/6-13, provides that the person named in the will has priority to serve as executor. However, a person is not actually an executor unless and until appointed by the court. If the named executor is unwilling or unable to serve, the court may appoint another qualified individual. Once appointed, the executor receives “letters of office,” which demonstrate the legal authority to act on behalf of the estate.
One of the first responsibilities of an executor is to identify, gather, and secure the decedent’s assets. This includes real estate, bank accounts, investments, personal property, and business interests. Under 755 ILCS 5/19-1, executors must take possession of the estate’s property and manage it responsibly. This may involve maintaining property, paying insurance, and ensuring that assets are not wasted or lost during the probate process.
Executors are also responsible for paying the decedent’s valid debts and taxes before distributing assets to beneficiaries. According to 755 ILCS 5/18-3, creditors must file claims within a specific timeframe after notice is given. Executors must review these claims carefully to determine which are valid. If a debt is disputed, the executor must follow a specific process before an alleged debt can be barred from collecting against the estate. Executors are also required to file final income tax returns and, if applicable, estate tax returns. Failure to pay taxes properly can create personal liability for the executor.
After debts and taxes are settled, the executor must distribute the remaining assets to beneficiaries as directed by the will. The Illinois Probate Act requires executors to account for all distributions and provide a final report to the court. Executors must follow the exact instructions in the will and cannot favor one beneficiary over another or apply their own judgement to what they think that the testator intended. If there is any ambiguity in the provisions of the will, the executor should seek direction from the court. Mismanagement of distributions can lead to disputes and possible removal by the court.
Executors owe a fiduciary duty to the estate and its beneficiaries. This means they must act with honesty, fairness, and loyalty. Under Illinois law, executors cannot use estate property for personal gain or make decisions that benefit themselves over the beneficiaries. Violating this fiduciary duty can result in removal and potential lawsuits from beneficiaries.
Serving as an executor is not always straightforward. Executors may need to address challenges such as disputes among beneficiaries, locating missing assets, handling real estate sales, or addressing business interests. Executors are entitled to reasonable compensation for their work, but the role can be stressful and time-consuming. Working with an attorney helps ensure that all duties are performed correctly and that the estate proceeds smoothly through probate.
An executor is named in a will and confirmed by the court, while an administrator is appointed by the court when there is no will or when no named executor can serve. Both roles involve similar responsibilities, but an executor carries out the specific instructions in a will.
Yes. An executor can be removed if they mismanage the estate, fail to perform duties, or act against the best interests of the beneficiaries. Beneficiaries can petition the court for removal if they believe the executor is not fulfilling their responsibilities. Beneficiaries also have the right to ask the court for supervised administration. Supervised administration is a probate process where the executor must seek court approval before various steps of the probate process and required more frequent and closer court oversight.
Generally, no. Executors are not personally responsible for paying estate debts out of their own funds. However, if the executor mishandles estate assets, ignores creditor claims, or fails to pay taxes, they can be held personally liable.
While individuals have the right to represent themselves in court as a pro se litigant without an attorney, individuals who are not attorneys cannot legally represent an estate. Moreover, when a surety bond is required the bond company will want an attorney involved throughout the probate process often as a condition of the bond. For these reasons, practically speaking, an executor in Illinois will need to hire legal counsel. Executors and the estate benefit from the assistance of counsel. The probate process involves strict deadlines, court filings, and complex tax issues. An attorney helps ensure compliance with Illinois law and reduces the risk of mistakes that could create personal liability.
Probate in Illinois typically takes between nine and fourteen months, depending on the complexity of the estate. Executors must allow time for creditors to file claims, which is at least six months from the date of notice. Larger estates or disputes among beneficiaries can extend the process.
Yes. Executors are entitled to reasonable compensation for their services. The amount depends on many factors, including but not limited to the size of the estate, the going rate for similarly provided services in the community, the skills of the executor, and the complexity of the work performed.
An out-of-state executor can still serve, but the court may require them to appoint a resident agent in Illinois for service of process. This ensures that legal notices can be properly delivered within the state.
At SBK Law Group, we guide clients in Downers Grove, Lombard, Joliet, and across the tri-county area through every step of the probate process. Serving as an executor is a serious responsibility. Our attorneys provide the legal knowledge and support you need to do the job right.
Contact our Downers Grove estate planning lawyers at SKB Law Group by calling 630-427-4407 to receive your free consultation. We represent clients in throughout DuPage, Kane and Will Counties from our office locations in Joliet and Lombard, Illinois. Together, we can ensure that your loved one’s estate is managed properly and that their wishes are honored.
