When a loved one passes away, the administration of their estate can be complex—especially if they resided in one state but owned property in another. This situation often triggers what’s known as ancillary probate, a secondary legal process to administer the out-of-state property. For example, if someone died while residing in Florida but owned real estate in Illinois, their estate would likely require ancillary probate in Illinois.
Below we’ll explore the essentials of navigating probate for out-of-state decedents with Illinois property, including when ancillary probate is required, the steps involved, and how Illinois law governs the process.
What Is Ancillary Probate?
Ancillary probate is a legal proceeding required when a deceased person (decedent) owns real property or tangible assets located in a state other than their state of residence. The primary probate is opened in the decedent’s home state (known as the domiciliary state), and the ancillary probate is opened in the other state (in this case, Illinois) to deal with the property located there.
Ancillary probate is common in Illinois because many people retire to warmer climates like Florida or Arizona but still retain property—such as homes, farmland, or business interests—in Illinois.
When Is Ancillary Probate Required in Illinois?
Under Illinois law, ancillary probate is generally required when:
- The decedent was not an Illinois resident at the time of death; and
- The decedent owned real property (e.g., a home, land, or commercial building) or tangible personal property (such as vehicles or valuable personal items) located in Illinois.
Intangible assets like bank accounts or stocks are typically handled in the primary probate proceeding, unless they are closely tied to Illinois in a way that requires court intervention.
The Legal Process in Illinois
1. Opening the Ancillary Estate
To begin, a representative of the decedent’s estate must file a petition in the Illinois county where the property is located. This is done in the Circuit Court’s Probate Division. The petition should include:
- A copy of the decedent’s Will, if one exists, along with proof that it was admitted to probate in the domiciliary state.
- An authenticated copy of the domiciliary probate proceedings, often including Letters Testamentary or Letters of Administration issued by the home state’s court.
If the Will complies with Illinois law, particularly the signing and witnessing requirements under 755 ILCS 5/4-3, the Illinois court will generally accept it without much issue.
2. Appointing a Representative
The court may appoint a local representative—sometimes called an ancillary executor or administrator—to manage the Illinois-based property. In many cases, the executor named in the Will (from the decedent’s home state) can serve in Illinois as well.
3. Administering the Estate
Once appointed, the representative will:
- Identify and appraise the Illinois property
- Settle any local debts or claims
- Pay any Illinois-specific taxes or fees
- Distribute the property in accordance with the Will or Illinois intestacy laws if there is no Will
If real estate is involved, the representative may need to transfer title or sell the property, depending on the estate’s needs and instructions.
4. Closing the Ancillary Estate
Once all Illinois-based matters are resolved, the representative will file a final accounting and request to close the ancillary probate case.
Avoiding Ancillary Probate
Families looking to avoid the time and cost of ancillary probate may consider estate planning tools such as:
- Revocable Living Trusts: Property placed in a trust during the decedent’s lifetime can avoid probate altogether.
- Joint Tenancy with Right of Survivorship: Automatically transfers ownership to the surviving owner.
- Transfer on Death Instruments (TODIs): A legal document allowing Illinois real estate to transfer outside probate upon death.
Each option has pros and cons and should be discussed with an experienced Illinois estate planning attorney.
Navigating probate for out-of-state decedents with Illinois property can be a challenging task without the right legal guidance. Ancillary probate ensures that property located in Illinois is legally and properly handled, even if the decedent lived elsewhere. Whether you are an executor managing a multi-state estate or a family member trying to understand your rights, it’s crucial to consult an attorney familiar with Illinois probate law to ensure a smooth and lawful process. For more information about ancillary probate in Illinois or to speak with a probate attorney, contact us to schedule a meeting with one of our attorneys.