Do All Wills Go Through Probate in Illinois?
No. Having a will does not automatically mean your family has to go to court, and it does not mean they get to skip court either. What matters is what the person owned and how it was set up, not whether there is a will.
What Is Probate?
Probate is the court process that happens after someone dies. A judge oversees who is in charge of the estate (the person called the executor), makes sure the bills are handled, and makes sure the person's property goes to the right people.
The executor is the person the will names to handle all of this.
Does Having a Will Mean You Have to Go Through Probate?
Not always. A will is a set of instructions. It says who gets what and who is in charge. It does not decide whether a court needs to get involved. That depends on what the person left behind and how it was owned.
Here is how it usually plays out:
Some estates with a will have to go through full probate.
Some qualify for a simpler shortcut.
Some pass to family without any court case at all.
Filing a Will and Starting Probate Are Two Different Things
If you are holding the original will, Illinois law (755 ILCS 5/6-1) says you must file it with the circuit court clerk right away after the person dies. That is the clerk's office in the proper county, which is usually the county where the person lived.
This is not optional, and it applies even if a full probate case is never opened.
Filing the will just puts it on record with the court. It does not start a probate case. Starting probate is a separate step, and whether it is needed depends on the property.
A few practical points:
Bring the original will, not a copy. You can take it to the courthouse in Cook County, Lake County, DuPage County, Will County, or whichever Illinois county applies.
Do not wait until you have figured out the rest of the estate. File first, then decide what comes next.
If someone does not file, the court can order the will to be handed over, and willfully hiding a will can be a crime.
When Does an Illinois Estate Have to Go Through Probate?
Even if there is a will, two situations usually mean going through probate.
The Person Left More Than $150,000 in Personal Property
Illinois allows a shortcut for smaller estates (explained below). It covers personal property, like bank accounts, stocks, and belongings, up to $150,000. Vehicles registered with the Illinois Secretary of State are not counted toward that number.
Only property in the person's name alone counts here. Things that already have a co-owner or a named beneficiary pass outside the estate.
If the total is over $150,000, the executor has to open a probate case. The executor then asks the court for "Letters of Office." These are court papers that prove the executor has the legal authority to act. Banks, investment firms, and title companies usually want to see them before they will release anything.
The Person Owned a Home or Land in Their Name Alone
If someone owned Illinois real estate in their name alone, a probate case is likely, no matter how much it is worth. The exception is if the property was set up with a Transfer on Death Instrument (TODI). A TODI is a recorded document that works like a deed that takes effect when the owner dies. Joint ownership with another person can also pass a property outside probate.
A will alone cannot change who owns a house on the public record. For example, a will that says "I leave my house to my daughter" does not let her simply take over ownership. The title company will ask for Letters of Office, and only a probate court can issue those.
Is There a Shortcut for Small Estates?
Yes. It is called a Small Estate Affidavit. An affidavit is a sworn written statement that is signed in front of a notary.
Under 755 ILCS 5/25-1, a family member can use this form to collect the person's property without opening a probate case. This works when the personal property is $150,000 or less, not counting registered vehicles. It can be used even when there is a will. The affidavit does not replace the will. It just lets certain transfers happen without a court case.
For example, a surviving spouse or adult child can give the affidavit and a death certificate to the bank, and the bank can release the money directly. This is faster, costs much less, and avoids the many months that a probate case can take in Illinois counties like Cook or DuPage.
It does not work for a house or land, and it cannot be used if the personal property is over $150,000. But for a bank account, a car, or personal belongings, it is often the right tool.
What Passes to Someone Without Going Through the Will?
Some property goes straight to a specific person no matter what the will says, and no court case is needed. A will has no power over these:
Property Owned Jointly With "Right of Survivorship"
When one owner dies, the other owner automatically becomes the owner of the whole property. A will cannot change that.
Accounts With a Named Beneficiary
Retirement accounts, life insurance policies, and annuities name a beneficiary directly. That choice controls who gets the money, even if the will says something different. You can learn more about beneficiary designations and why they matter.
Bank Accounts Marked "Payable on Death" or "Transfer on Death"
Bank and brokerage accounts with a POD or TOD label go straight to the named person. The bank usually needs a death certificate and ID, not court paperwork.
Real Estate With a Transfer on Death Instrument
An Illinois property owner can record a TODI while they are alive. When the owner dies, the property goes to the person named, without probate. It is one of the few ways to keep Illinois real estate out of probate court without putting it in a trust.
Property Held in a Revocable Living Trust
Property that was moved into a revocable living trust while the owner was alive belongs to the trust, not the person. After the owner dies, the person in charge of the trust (the successor trustee) hands it out following the trust's instructions, without going to court. Of all the tools, this is the most complete way to avoid probate in Illinois.
So, can a will avoid probate by itself? No. A will has no say over property that passes in these ways. But a will can work alongside them, and using them can shrink what has to go through court.
What to Do If You Are Holding a Will in Illinois
If a family member has passed away and you have their will, here is a simple way to move forward.
Step 1: File the Original Will Right Away
Bring the original will to the circuit court clerk's office in the county where the person lived. This is the first legal duty, and it does not depend on anything else. Do not wait to look at the estate first.
Step 2: List What the Person Owned
Write down everything the person owned. Then sort it into two groups. The first group is property that passes on its own because of a named beneficiary, joint owner, POD or TOD label, or a trust. The second group is property in the person's name alone. The second group decides whether probate is needed.
Step 3: Figure Out Which Path Applies
If the personal property in the person's name alone is $150,000 or less and there is no house or land in their name alone, the Small Estate Affidavit may be enough. If it is over $150,000, or there is real estate in their name alone with no TODI, a probate case will likely be needed, and the executor will need Letters of Office from the court.
Step 4: Talk to an Illinois Probate Attorney Before Contacting the Bank
Banks and investment firms each have their own rules for releasing money. Calling them before you know what they need can slow things down. An Illinois attorney can tell you which papers to gather and in what order.
Frequently Asked Questions
Do I have to go to court if there is a will?
Not automatically. It depends on what the person owned and what it is worth, not on whether there is a will. If their personal property is $150,000 or less and there is no house or land in their name alone, you may be able to use the Small Estate Affidavit instead.
What happens if I just keep the will in a drawer?
Illinois law (755 ILCS 5/6-1) says anyone holding a will must file it with the circuit court clerk right after the person dies. If someone does not, the court can order the will to be handed over, and willfully hiding a will can be a crime. The duty to file applies even if a probate case is never opened.
Does a will skip probate in Illinois?
No. A will gives instructions if probate is needed. The things that skip probate are property owned jointly, property in a trust, and accounts with a named beneficiary. Those pass outside the will and outside court.
If there is a will, does it go to probate?
The will itself has to be filed with the circuit court clerk. Whether a probate case follows depends on the specific property and its value. Filing the will and starting probate are two separate steps.
Can an executor act without Letters of Office?
For property that passes outside probate, usually not needed. But for property in the person's name alone, like a bank account with no POD label or a house with no TODI, banks and title companies will ask for Letters of Office before they cooperate. Those papers come from the probate court.
Not Sure Where to Start?
Filing the will is the first step, but you do not have to figure out the whole estate at once. Filing it with the right Illinois county clerk protects you legally. What comes next depends on how the person's property was owned and what it adds up to.
An Illinois estate attorney can look at the specific property, tell you what has to go through probate, see whether the Small Estate Affidavit works, and lay out next steps before delays cost the estate time or money. If you also want to make things simpler for your own family one day, through beneficiary designations, a TODI, or a trust, that conversation can happen at the same time.
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