Independent Administration Of Decedents' Estates

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  2. Illinois Compiled Statutes
  3. ESTATES
  4. Probate Act of 1975.
  5. Independent Administration Of Decedents' Estates

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(755 ILCS 5/Art. XXVIII heading)

ARTICLE XXVIII
INDEPENDENT ADMINISTRATION OF DECEDENTS' ESTATES

 

(755 ILCS 5/28-1) (from Ch. 110 1/2, par. 28-1)

Sec. 28-1. Purpose and scope of Article.) This Article permits an executor or administrator to administer the estate without court order or filings, except to the extent that court order or filing is required by this Article or is requested by any interested person pursuant to this Article. This Article shall apply to all estates after the effective date of this Amendatory Act of 1983, whether letters of office are issued before, on or after that date. All provisions of this Act dealing with decedents' estates that are not inconsistent with this Article apply to and govern independent administration.

(Source: P.A. 83-900.)

 

(755 ILCS 5/28-2) (from Ch. 110 1/2, par. 28-2)

Sec. 28-2. Order for independent administration - notice of appointment of independent administrator.)

(a) Unless the will, if any, expressly forbids independent administration or supervised administration is required under subsection (b), the court shall grant independent administration (1) when an order is entered appointing a representative pursuant to a petition which does not request supervised administration and which is filed under Section 6-2, 6-9, 6-20, 7-2, 8-2, 9-4 or 9-6 and (2) on petition by the representative at any time or times during supervised administration and such notice to interested persons as the court directs. Notwithstanding any contrary provision of the preceding sentence, if there is an interested person who is a minor or person with a disability, the court may require supervised administration (or may grant independent administration on such conditions as its deems adequate to protect the ward's interest) whenever the court finds that (1) the interests of the ward are not adequately represented by a personal fiduciary acting or designated to act pursuant to Section 28-3 or by another party having a substantially identical interest in the estate and the ward is not represented by a guardian of his estate and (2) supervised administration is necessary to protect the ward's interests. When independent administration is granted, the independent representative shall include with each notice required to be mailed to heirs or legatees under Section 6-10 or Section 9-5 an explanation of the rights of heirs and legatees under this Article and the form of petition which may be used to terminate independent administration under subsection 28-4(a). The form and substance of the notice of rights and the petition to terminate shall be prescribed by rule of the Supreme Court of this State. Each order granting independent administration and the letters shall state that the representative is appointed as independent executor or independent administrator, as the case may be. The independent representative shall file proof of mailing with the clerk of the court.

(b) If an interested person objects to the grant of independent administration under subsection (a), the court shall require supervised administration, except:

  • (1) If the will, if any, directs independent administration, supervised administration shall be required only if the court finds there is good cause to require supervised administration.
  • (2) If the objector is a creditor or a legatee other than a residuary legatee, supervised administration shall be required only if the court finds it is necessary to protect the objector's interest, and instead of ordering supervised administration, the court may require such other action as it deems adequate to protect the objector's interest.

(Source: P.A. 99-143, eff. 7-27-15.)

 

(755 ILCS 5/28-3) (from Ch. 110 1/2, par. 28-3)

Sec. 28-3. Protection of persons under disability during independent administration.)

(a) A personal fiduciary acting pursuant to this Article has full power and the responsibility to protect the interests of his ward during independent administration and to do all acts necessary or appropriate for that purpose which the ward might do if not under disability. Approval of any act of the independent representative or of his final report by the personal fiduciary, or failure of the personal fiduciary to object after notice pursuant to this Article, binds the ward. Unless the ward is bound under the preceding sentence, the independent representative is accountable to the ward for damages incurred as a consequence of willful default by the independent representative until the expiration of a period of 6 months after the ward's disability is removed, and any action must be commenced before the expiration of that period. Upon the entry of an order pursuant to Section 28-4 terminating independent administration status, the personal fiduciary's powers and responsibility for continuing to protect the ward's interest terminate. The fact that a personal fiduciary is acting does not limit the right of any person as next friend of the ward to inform the court of any circumstances that may adversely affect the ward's interests in the estate.

(b) The following persons are entitled to act as personal fiduciary for a ward in the order of preference indicated:

  • (1) The representative of the ward's estate acting in Illinois or, if none, the representative of the ward's estate acting in any other jurisdiction.
  • (2) The person designated as personal fiduciary in the decedent's will, if any.
  • (3) The person designated as personal fiduciary by the independent representative in a petition for letters of office or other instrument filed with the clerk of the court.

No person may act as personal fiduciary who is a minor or person with a disability, who has been convicted of a felony or whose interests conflict with the ward's interests in the decedent's estate. A personal fiduciary designated under subparagraph (3) above shall be a spouse, descendant, parent, grandparent, brother, sister, uncle or aunt of the ward, a guardian of the person of the ward or a party having an interest in the estate substantially identical to that of the ward. The responsibility of a personal fiduciary begins on delivery of his written acceptance of the office to the independent representative. Any personal fiduciary may refuse to act or may resign at any time by instrument delivered to the independent representative. When a personal fiduciary has been appointed and there is a change of personal fiduciary or a vacancy in that office, the independent representative shall inform the court; and the court may designate any suitable person as personal fiduciary when there is a vacancy that has not been filled by the independent representative in accordance with this Section 28-3.

(c) A personal fiduciary is entitled to such reasonable compensation for his services as may be approved by the independent representative or, in the absence of approval, as may be fixed by the court, to be paid out of the estate as an expense of administration.

(d) A personal fiduciary is liable to the ward only for willful default and not for errors in judgment.

(Source: P.A. 99-143, eff. 7-27-15.)

 

(755 ILCS 5/28-4) (from Ch. 110 1/2, par. 28-4)

Sec. 28-4. Termination of independent administration status.) (a) Upon petition by any interested person, mailed or delivered to the clerk of the court, the court shall enter an order terminating the independent administration status of the estate, except:

(1) If the will, if any, directs independent administration, independent administration status shall be terminated only if the court finds there is good cause to require supervised administration.

(2) If the petitioner is a creditor or a legatee other than a residuary legatee, independent administration status shall be terminated only if the court finds that termination is necessary to protect the petitioner's interest, and instead of terminating independent administration status, the court may require such other action as it deems adequate to protect the petitioner's interest. Upon termination of independent administration, the representative must mail notice of the termination to all interested persons whose names and post office addresses are known to the representative and file proof of mailing with the clerk of the court.

(b) After entry of an order terminating independent administration status, the representative shall be governed by all provisions of the Act applicable to the estate in supervised administration, and the order of termination shall direct the representative as to the time and manner for the performance of any acts (such as the filing of an inventory or account) which would have been required to be done earlier in supervised administration.

(c) After entry of an order terminating independent administration status, the independent representative may not exercise any power pursuant to this Article and is liable for any damages caused by any such exercise, but the validity of the independent representative's actions pursuant to this Article after termination with respect to any person other than beneficiaries and creditors of the estate will not be affected by termination of independent administration unless such person has actual knowledge of termination.

(Source: P.A. 81-1453.)

 

(755 ILCS 5/28-5) (from Ch. 110 1/2, par. 28-5)

Sec. 28-5. Court proceedings during independent administration.) At any time or times during independent administration any interested person may petition the court for a hearing and order as to any matter germane to the administration of the estate, and the provisions of this Act other than this Article shall govern any such court proceedings in the same manner as under supervised administration. If the independent representative petitions the court for instructions as to the exercise of any discretionary power, he renounces his discretion with respect to the matter before the court and the court shall substitute its judgment for his.

(Source: P.A. 81-213.)

 

(755 ILCS 5/28-6) (from Ch. 110 1/2, par. 28-6)

Sec. 28-6. Service of inventory.) (a) Not less than 30 days prior to filing of the verified report required by Section 28-11, an independent representative shall mail or deliver a copy of an inventory of the estate to each interested person; provided, however, that prior to that time any interested person shall be given a copy of an inventory upon written request. An independent representative need not file the inventory with the court.

(b) Within 90 days after issuance of letters of office to an independent administrator, said administrator shall provide to the surety on the bond, by certified mail, a copy of the inventory of the real and personal estate which has come to his knowledge. The same procedure shall apply to property coming to his knowledge after the original inventory is completed. Failure to comply with this provision may result in termination of independent administration status under the provisions of Section 28-4.

(Source: P.A. 84-555; 84-690.)

 

(755 ILCS 5/28-7) (from Ch. 110 1/2, par. 28-7)

Sec. 28-7. Spouse and child awards.) (a) When an award under Section 15-1 or 15-2 is allowable and is not waived or barred, an independent representative may pay the award determined under Section 15-1 or 15-2 without application to the court unless the aggregate of all awards exceeds 5% of the gross value of the estate at the date of death, as determined by the independent representative; but the minimum amount of any award under Section 15-1 or 15-2 may be paid in any event without application to the court.

(b) The independent representative shall give notice of the allowance of the award as provided in subsection 15-3(a). When an independent representative makes an award without application to the court, each person having a right of selection of goods and chattels under Section 15-4 may file his selection with the independent representative within 30 days after he is notified in writing of the allowance of the award.

(Source: P.A. 81-213.)

 

(755 ILCS 5/28-8) (from Ch. 110 1/2, par. 28-8)

Sec. 28-8. Administrative powers. An independent representative acting reasonably for the best interests of the estate has the powers granted in the will and the following powers, all exercisable without court order, except to the extent that the following powers are inconsistent with the will:

  • (a) To lease, sell at public or private sale, for cash or on credit, mortgage or pledge the personal estate of the decedent and to distribute in kind any personal estate the sale of which is not necessary;
  • (b) To borrow money with or without security;
  • (c) To mortgage or pledge agricultural commodities as provided in Section 19-3;
  • (d) To continue the decedent's unincorporated business without personal liability except for malfeasance or misfeasance for losses incurred; and obligations incurred or contracts entered into by the independent representative with respect to the business are entitled to priority of payment out of the assets of the business but, without approval of the court first obtained, do not involve the estate beyond those assets;
  • (e) To settle, compound or compromise any claim or interest of the decedent in any property or exchange any such claim or interest for other claims or property; and to settle compound or compromise and pay all claims against the estate as provided in Sections 18-11 and 18-13, but claims of the independent representative or his attorney shall be subject to Section 18-8;
  • (f) To perform any contract of the decedent;
  • (g) To employ agents, accountants and counsel, including legal and investment counsel; to delegate to them the performance of any act of administration, whether or not discretionary; and to pay them reasonable compensation;
  • (h) To hold stocks, bonds and other personal property in the name of a nominee as provided in Section 19-12;
  • (i) To take possession, administer and grant possession of the decedent's real estate, which term in this subsection includes oil, gas, coal and other mineral interests therein; to pay taxes on decedent's real estate whether or not in possession of the representative; to lease the decedent's real estate upon such terms and for such length of time as he deems advisable; to sell at public or private sale, for cash or on credit, or mortgage any real estate or interest therein to which the decedent had claim or title, but real estate specifically bequeathed shall not be leased, sold or mortgaged without the written consent of the legatee; and to confirm the title of any heir or legatee to real estate by recording and delivering to the heir or legatee an instrument releasing the estate's interest; and
  • (j) To retain property properly acquired, without regard to its suitability for original purchase; and to invest money of the estate (1) in any one or more of the investments described in Section 21-1 or (2) if the independent representative determines that the estate is solvent and all interested persons other than creditors approve, in any investments authorized for trustees under the prudent investor rule stated in Article 9 of the Illinois Trust Code.

(Source: P.A. 101-48, eff. 1-1-20.)

 

(755 ILCS 5/28-9) (from Ch. 110 1/2, par. 28-9)

Sec. 28-9. Protection of persons dealing with an independent representative.) No person dealing with an independent representative is obliged to inquire as to the independent representative's powers under any will or court order or see to the application of any money or property paid or delivered to the independent representative. No will or court order limiting an independent representative's powers is effective as to a person with whom the independent representative deals, and such person may assume that the independent representative's act is in accordance with any applicable will or court order, unless such person has actual knowledge of the limitation. If property or a security interest therein is acquired in good faith by a purchaser or lender for value from an independent representative, the purchaser or lender takes title free of the rights of all persons having an interest in the estate and incurs no liability to the estate, whether or not the action of the independent representative was proper.

(Source: P.A. 81-213.)

 

(755 ILCS 5/28-10) (from Ch. 110 1/2, par. 28-10)

Sec. 28-10. Distribution.)

(a) If it appears to the independent representative that there are sufficient assets to pay all claims, the independent representative may at any time or times distribute the estate to the persons entitled thereto. As a condition of any distribution, the independent representative may require the distributee to give him a refunding bond in any amount the independent representative deems reasonable, with surety approved by the independent representative or without surety. If the distribution is made before the expiration of the period when claims are barred under Section 18-12, the independent representative must require the distributee to give him a refunding bond as provided in Section 24-4. If the estate includes an interest in real estate that has not been sold by the independent representative, the independent representative must record and deliver to the persons entitled thereto an instrument which contains the legal description of the real estate and releases the estate's interest.

(b) If abatement or equalization of legacies pursuant to subsection 24-3(b) or (c) is required, the independent representative shall determine the amount of the respective contributions, the manner in which they are paid and whether security is required.

(c) If it appears to the independent representative that the value of the estate of the decedent remaining after payment of 1st class claims does not exceed the amount of the surviving spouse's and child's awards due, the independent representative may deliver the personal estate to the persons entitled to the awards and close the estate as provided in Section 28-11, without waiting until the expiration of the period when claims are barred under Section 18-12.

(d) If property distributed in kind, or a security interest therein, is acquired in good faith by a purchaser or lender for value from a distributee (or from the successors in interest to a distributee) who has received physical delivery or an assignment, deed, release or other instrument of distribution from an independent representative, the purchaser or lender takes title free of the rights of all persons having an interest in the estate and incurs no liability to the estate, whether or not the distribution was proper.

(e) If a distributee is a minor or a person with a disability, the independent representative may make distribution to the ward's representative, if any, to a custodian for the ward under the Illinois Uniform Transfers to Minors Act or the corresponding statute of any other state in which the ward or the custodian resides, by deposit or investment of the ward's property subject to court order under Section 24-21 or in any other manner authorized by law.

(Source: P.A. 99-143, eff. 7-27-15.)

 

(755 ILCS 5/28-11) (from Ch. 110 1/2, par. 28-11)

Sec. 28-11. Closing the estate.

(a) An independent representative is accountable to all interested persons for his administration and distribution of the estate but need not present an account to the court unless an interested person requests court accounting as in supervised administration.

(b) An independent representative seeking discharge shall mail or deliver to all interested persons an accounting and shall file in the court a verified report stating substantially as follows:

  • (1) In a testate estate, that notice has been given to the extent required by Section 6-10.
  • (2) In an intestate estate, that notice has been given to the extent required by Section 9-5.
  • (3) That the notice required by Section 18-3 has been published, that reasonable care was used to determine the creditors of the decedent and that all known creditors have been given notice as required under Section 18-3.
  • (4) That copies of an inventory and an accounting have been mailed or delivered to the extent required by Section 28-6 and this Section.
  • (5) That each claim filed has been allowed, disallowed, compromised, dismissed or is barred and that all claims allowed have been paid in full, or, if the estate was not sufficient to pay all the claims in full, that the claims have been paid according to their respective priorities.
  • (6) That all death taxes have been determined and paid or otherwise provided for or that the estate is not subject to death taxes.
  • (7) That all administration expenses and other liabilities of the estate have been paid and that administration has been completed, or to the extent not completed has been provided for as specified in the report.
  • (8) That the remaining assets of the estate have been distributed to the persons entitled thereto.
  • (9) That the fees paid or payable to the independent representative and his attorney have been approved by all interested persons, except as otherwise indicated.
  • (10) The name and post office address, if known, of each person entitled to notice of the filing of the report.

(c) Notice of the filing of the report shall be given to all interested persons, except:

  • (1) Creditors whose written approvals of the report are filed with the report or whose claims have been paid according to statutory priority or compromise agreed to by the creditor;
  • (2) Heirs and legatees whose signed receipts for payment or distribution in full are filed with the report; but the receipt by each interested person whose share of the estate is affected by the amount of the fees paid or payable to the representative and his attorney shall also state that such fees are approved and the receipt by each interested person whose payment or distribution is affected by the size of the estate shall also state that an inventory has been received and an accounting has been approved; and
  • (3) Whenever a trustee of a trust is an interested person, beneficiaries of the trust by reason of the beneficiaries' interest in the trust.

(d) If pursuant to subsections (c)(1), (c)(2) and (c)(3) no person need be given notice, the court shall enter an order discharging the independent representative and declaring the estate closed.

(e) In all cases not covered by subsection (d), not more than 14 days after the filing of the report the independent representative shall mail a copy of the report showing the date of its filing to each person who is entitled to and has not waived notice thereof and shall notify each such person that if no objection is filed within 42 days after the report was filed, the independent representative will be discharged and the estate closed. If the name or post office address of any person entitled to notice is not stated in the report or if the estate was opened on the presumption of death, the independent representative shall publish a notice stating that the report was filed on the date stated and that if no objection is filed within 42 days after the filing of the report, the independent representative will be discharged and the estate closed. The notice shall be published once a week for 3 successive weeks, the first publication to be not more than 14 days after the filing of the report. The notice shall be published in a newspaper published in the county where the independent representative's letters of office were issued. At any time after the expiration of a period of 42 days from the filing of the independent representative's report, the independent representative may apply to the court for a discharge and, if no objection is then pending in the court, the court shall enter an order discharging the independent representative and declaring the estate closed. If any objection is then pending, the court shall order that notice be given to all interested persons and may order the independent representative to present a verified account of his administration within such time as the court directs. The independent representative shall file proof of mailing and publication, if publication is required, with the clerk of the court.

The changes made by this amendatory Act of 1995 apply to reports filed on or after the effective date of this amendatory Act of 1995.

(f) In the absence of fraud, accident or mistake, an order discharging the independent representative and declaring the estate closed is binding on each person whose receipt or approval was filed with the report and on each person to whom notice thereof was given in compliance with subsection (e) except a ward for whom no personal fiduciary is acting.

(Source: P.A. 89-364, eff. 8-18-95.)

 

(755 ILCS 5/28-12) (from Ch. 110 1/2, par. 28-12)

Sec. 28-12. Notice.) Notice or other information mailed to an interested person at his last address known to the sender shall be deemed given to the person for all purposes of this Article at the time of mailing.

(Source: P.A. 81-213.)


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