Testate vs. Intestate Estate

In General

What is the difference between a testate estate and an intestate estate? Will my assets be distributed differently depending on how my estate is classified? Why does this matter? These are all important questions that are answered below.

When someone dies, that person is known as the Decedent. If the Decedent left a valid Will, the estate will be probated as a testate estate. If the Decedent did not leave a Will, the estate will be probated as an intestate estate.

Testate Estate:

• Decedent died with a valid Will.
• The estate will be distributed in accordance with the Decedent’s Will.
• The estate is typically administered by the Executor or Personal Representative, as designated by the Decedent.

Necessary Forms:

1. Petition For Probate of Will and For Letters Testamentary.
2. Affidavit of Heirship.
3. Oath and Bond of Representative – no Surety or with
4. Waiver of Notice – Rights of Heirs/Legatees
5. Any heir or legatee may file a petition with the court requiring proof within 42 days of the original order admitting the Will to probate is effective.
6. Also may contest the Will’s validity by filing a petition within 6 months of the Order admitting/denying the Will’s admission to probate.
7. Order Declaring Heirship: the court will decide the true heirs of the decedent's will.
8. Order admitting Will to Probate and Appointing the Representative.
9. Copy of Will, must be filed in advance
10. “Immediately upon the death of the testator, any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will, subject to the provisions of Section 5.15 of the Secretary of State Act.” Probate Act of 1975, 755 ILCS 5/Art. VI §6-1(a)
11. “If any person wilfully alters or destroys a will without the direction of the testator or wilfully secrets it for the period of 30 days after the death of the testator is known to be him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense. The 30-day period does not apply to the Secretary of State when action pursuant to Section 5.15 of the Secretary of State Act.” Probate Act of 1975, 755 ILCS 5/Art. VI §6-1(b).

Intestate Estate:

• Decedent dies with no will (or an invalid will).
• Assets are distributed to heirs according to state intestacy law.
• Administrator is appointed to manage the intestate estate.
• A form called a “Petition for Letters of Administration” will be filled out by a petitioner when asking the court to nominate an administrator of the estate.

Necessary Forms:

• Petition for Letters of Administration.
• Waiver of Notice
• Rights of Heirs/Legatees (only applicable where the decedent left a will) -
• Any heir or legatee may file a petition with the court requiring proof within 42 days of the original order admitting the will to probate is effective.
• Also, may contest the Will’s validity by filing a petition within 6 months of the Order admitting/denying the Will’s admission to probate.
• Oath and Bond of Representative – Surety.
• Order Appointing Representative of Decedent's Estate – Intestate.
• Order Declaring Heirship.

Benefits of Estate Planning:

Proper estate planning allows for an easier probate process and peace of mind that your assets will be distributed how you intend them to upon your death.

Estate planning can be overwhelming, but we’ve got you covered! Here at Grant Park Legal Advisors, we offer services with trusted advisors to help meet the needs of all our clients.