Independent Administration of a Decedent’s Estate

decedent’s estate, Naperville estate planning attorneysWhen a will is admitted to probate, this does not necessarily mean the probate process must be supervised by a court. In certain circumstances, Illinois law permits executors to administer the decedent’s estate without court order or filings. However, if an interested person objects to independent administration, the court will order supervised administration. There are two exceptions:

  • If the will directs independent administration, the court will only require supervised administration if there is good cause; or

  • If the objector is a creditor or a legatee (other than a residuary legatee), the court will require supervised administration if it is necessary to protect the objector’s interest.

Unless the will expressly forbids it (and unless Illinois law expressly requires supervised administration) the court will grant independent administration:

  • When the court appoints a representative pursuant to a position that does not request supervised administration; and

  • On petition by the representative at any time during supervised administration.

If the court grants independent administration then the representative must provide notice to all heirs and legatees. The notice must include an explanation of rights, including how to terminate independent administration.

Supervised Administration and Personal Fiduciaries

The court will often require supervised administration when one of the interested parties is a minor or a disabled person. Supervision is required if the ward is not adequately represented by a personal fiduciary and supervision is deemed necessary to protect the ward’s interests. Independent administration may proceed if the personal fiduciary can adequately represent the ward.

The fiduciary is responsible for taking all necessary actions during independent administration that the ward would do if not under disability. If the fiduciary approves of—or does not timely object to—the representative’s actions, then the ward is bound by them. The fiduciary serves an important role, which is why the law only permits certain individuals to perform this function. To serve as personal fiduciary, the law prefers:

  • The representative of the ward’s estate acting in Illinois or in any other jurisdiction if there is none in Illinois;

  • Whoever the decedent’s will designated as personal fiduciary; or

  • Whoever the independent representative designated as personal fiduciary in a petition filed with the clerk of the court (i.e., the ward’s spouse, descendant, parent, grandparent, sibling, uncle or aunt, or a party with substantially identical interest in the estate).

The personal fiduciary cannot be a minor, disabled person, a convicted felon, or anyone whose interests conflict with the ward’s interests in the estate. Also note that a fiduciary can refuse to act or can resign at any time but must inform the independent representative, who in turn must inform the court.

If you are an interested party to an independently administered estate, you still have the right to seek counsel. Our Naperville estate planning attorneys will ensure that your rights are protected during probate. Contact us today for a consultation.