wHAT IS THe PROCESS TO FILe A CLAIM AGAINST A PROBATE ESTATE?

In any probate estate, the representative of the estate (either the administrator of the executor depending on whether there is a will) is charged with the task of collecting all of the assets of the estate, paying all of the debts of the estate, and then distributing the remainder of the assets to the heirs. During this process, anyone with a claim against the estate has the opportunity to file that claim and present it to the court. A claim against an estate can include anything from an unpaid debt to a tort claim for a tort for wrongful conduct during the decedent’s life.

How is a claim presented?

A claim against a probate estate in Illinois is not required to follow the formal rules governing the filing of a Complaint in a typical civil lawsuit. In other words, the rules are relaxed and it is relatively easy to present a claim. In fact, all of the courts in the Chicagoland area provide probate claim forms.

A claim against the probate estate can either be filed with the court or mailed to the representative of the estate. Once the representative receives notice of the claim, he or she can either allow the claim or send a notice to the claimant informing them that they are “disallowing” the claim. If the representative disallows the claim, then it is certain that the debt is in dispute and the matter will be decided by the judge presiding over the probate estate.

When is the deadline for filing a claim?

In Illinois, all claims against probate estates are barred if not filed within two years from the date of the decedent’s death. The Illinois Probate Act also allows the estate’s representative certain ways to shorten this two-year period.

For unknown creditors of the estate: The representative can publish notice. This notice appears in local publication and has the effect of barring all claims by creditors, which are not known to the representative, if they are not filed within six months of the first date of publication.

For known creditors: The representative can mail a notice to them informing them that the estate is been opened and they have a certain time period (set by statute) within which to file their claims against the estate. If they fail to file their claims, those claims are barred. The representative must send notice to all known creditors. If the representative fails to send notice, then the claimant will have two years to file its claim.

How do I prove my claim in court?

Once you file your claim with the court, the court will give you an initial hearing date. At that hearing, the representative will either allow the claim or disallow the claim and will schedule a date for hearing on your claim. The other option is that the claim will be continued in order to allow the parties to begin discovery and possibly settle the claim. The trial on a claim follows the same rules of procedure as any other civil lawsuit in Illinois.

Conclusion

It is important for both decedent’s estates and creditors to have experienced probate lawyers to assist them in navigating the many nuances of Illinois law related to probate claims. The probate lawyers at Hays Firm LLC are knowledgeable estate attorneys who have a great deal of experience helping both estates and creditors in highly contested probate claim litigation. Please contact us regarding any probate claims you are involved in to discuss how we can help.