Illinois Probate Code: What the Probate Act of 1975 Actually Requires

When a bank teller tells you they need "a court order" before releasing your father's account, they are referring to the Illinois Probate Act of 1975. When a title company says the house can't be sold until probate is "closed," they mean that statute. Nearly every institutional obstacle you will face as an Illinois executor traces back to a single law: 755 ILCS 5.

Understanding the structure of that law—even at a high level—gives you language to use with courts, banks, and attorneys that most families never have.

What Is the Illinois Probate Act of 1975?

The Illinois Probate Act of 1975 (755 ILCS 5) is the primary statute governing how a deceased person's estate is administered in Illinois. It covers:

• Whether and how an estate must go through probate court
• Who has authority to act as executor or administrator
• How creditors are notified and paid
• How assets are distributed to heirs and beneficiaries
• What happens when someone dies without a will (intestate succession)

The Act is organized into Articles, each addressing a distinct phase or topic. Article 2 covers intestate succession. Article 5 governs the probate of wills. Article 9 deals with supervised administration. Article 28 covers independent administration. Article 25 governs the Small Estate Affidavit—the mechanism most families use to bypass formal probate entirely.

The 2026 Updates That Changed the Calculus

The Illinois Probate Act was amended significantly through Public Act 104-0346, effective August 2025. Two changes affect almost every estate:

The Small Estate Affidavit threshold rose from $100,000 to $150,000. Under 755 ILCS 5/25-1, if the decedent's personal property (held solely in their name, without beneficiary designations) totals $150,000 or less, the estate may qualify to bypass formal probate entirely using a notarized affidavit—no court filing required.

Motor vehicles are now excluded from the threshold calculation. Previously, a car worth $40,000 counted against the $100,000 cap. Under the amended statute, vehicles registered with the Illinois Secretary of State are excluded entirely. A family could have a $130,000 truck plus $120,000 in personal assets and still qualify—provided the $120,000 in non-vehicle personal property falls within the limit.

One critical limitation that did not change: real estate cannot be transferred using a Small Estate Affidavit under any circumstances. If the decedent owned real property titled solely in their name, formal probate is mandatory regardless of the estate's total dollar value.

The Formal Probate Pathway Under the Act

When formal probate is required, the Act sets a strict sequential process.

Filing the will (30-day deadline). Under 755 ILCS 5/5-1, anyone who possesses the decedent's original will must file it with the circuit court clerk in the county of residence within 30 days of learning the testator has died. Note: the original paper document must be physically lodged. Illinois courts exempt original wills from the state's electronic filing mandate—scanning the will and shredding the original is a serious procedural error.

Petition for Letters of Office. An attorney files a "Petition for Probate of Will and for Letters Testamentary" (with a will) or a "Petition for Letters of Administration" (without a will) with the local circuit court. Under binding appellate precedent, In re Estate of Mattson (2019 IL App (1st) 180805), a non-attorney cannot represent a decedent's estate pro se in formal probate proceedings. An Illinois-licensed attorney is required.

Independent vs. supervised administration. Article 28 of the Act governs independent administration, the preferred route for most estates. Under independent administration (755 ILCS 5/28-1), the executor can sell property, pay debts, and make distributions without seeking court approval for each transaction. Supervised administration under Article 9 requires court sign-off on nearly every action—significantly increasing legal fees and timelines.

Creditor notification (6-month clock). Under 755 ILCS 5/18-3, the executor must publish a "Notice to Creditors" in a local newspaper once a week for three consecutive weeks. This starts a six-month clock: unknown creditors must file claims within that window or be permanently barred. If publication is skipped, creditors have two full years from the date of death to file. That two-year window prevents any safe distribution to heirs—exposing the executor to personal liability if they pay beneficiaries early.

Creditor payment hierarchy. When an estate is insolvent, the Act establishes seven classes of creditors under 755 ILCS 5/18-10. Class 1 is funeral and administration expenses. Class 2 is the spousal and family award (minimum $20,000 for a surviving spouse). Class 7 is credit cards and unsecured personal loans. Paying a Class 7 credit card before satisfying Class 1 funeral expenses exposes the executor to personal liability for the shortfall.

Key Thresholds at a Glance

What the Act Does Not Cover

755 ILCS 5 governs assets that pass through the estate—assets titled solely in the decedent's name without a beneficiary designation. It does not govern:

• Life insurance proceeds paid to a named beneficiary
• Retirement accounts (IRAs, 401(k)s) with designated beneficiaries
• Joint tenancy property that passes by right of survivorship
• Payable-on-death (POD) or transfer-on-death (TOD) accounts
• Real estate held in a living trust or via a Transfer on Death Instrument (TODI)

These assets transfer outside probate regardless of what the will says and regardless of the Probate Act's thresholds. The executor's first job is to sort assets into two buckets: those governed by 755 ILCS 5, and those that pass outside it.

Other Illinois Statutes That Intersect With Probate

The Probate Act does not operate in isolation. Several other Illinois statutes routinely come into play:

755 ILCS 27 — Illinois Residential Real Property Transfer on Death Instrument Act. Governs TODIs, which allow real estate to transfer at death without probate. Beneficiaries must record an acceptance affidavit within two years of death to prevent the transfer from lapsing.

755 ILCS 45 — Illinois Power of Attorney Act. Governs health care and property POAs. A property POA becomes void the moment the principal dies—attempting to use one at a bank after death constitutes a fiduciary breach.

35 ILCS 405 — Illinois Estate and Generation-Skipping Transfer Tax Act. Governs the Illinois estate tax, which applies to gross estates exceeding $4,000,000. Illinois Form 700 is due nine months after death.

Where to Find the Actual Text

The Illinois Probate Act of 1975 is publicly available through the Illinois General Assembly's website at ilga.gov. Navigate to Chapter 755, Act 5. Individual sections are cited by article number (e.g., 755 ILCS 5/18-3 is Article 18, Section 3).

If you're working with an attorney, referencing specific sections by cite—rather than describing the situation in plain language—dramatically speeds up consultations and reduces billable time.

The Illinois Probate Process Guide walks through each phase of the Act in executor-ready language, including the forms required at each step, county-specific filing fees, and the exact deadlines that carry personal liability consequences. If you are starting this process or preparing for it, the guide covers what the statute requires and how to meet those requirements without unnecessary delays.

Get the complete guide at /us/illinois/probate/

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