Legal Question in Wills and Trusts in Illinois

Until the will is admitted to probate, that is, the court decides that it is the last will, and a valid will, a will is just another piece of paper. And, the probate court must then issue letters of office to the petitioner who is the person who sought to have the will admitted to probate. Until a person is issued letters of office by the probate court, he or she is NOT legally the executor. Accordingly, a person named in the will to be executor has no duties unless he or she affirmatively embraces the office by seeking letters of office.

This means that a person named in the will as executor has NO liabilty at all, to act, or not act, or to pay any bills, etc. Unless that person was otherwise a fiduciary of the decedent, through a trust, power of attorney or other legal relationship that gave rise to a duty, the named person can legally do nothing, and is not liable for refraining from acting.

It is a common misconception in my practice that a person named as the executor somehow has "higher"powers to deal with the deceased's affairs. Unless and until the will is admitted, and letters of office are issued by the court, no one in particular is in charge.