Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
Under the Illinois Probate Act (755 ILCS 5/18-3), a creditor who fails to file a claim within two years after the decedent’s death is barred from recovery. To invoke this two-year limitation, a client must confirm that the personal representative properly notified potential creditors.
Creditor Notice Requirements
- Publication Notice: The personal representative must publish a notice in a newspaper of general circulation in the probate county within three months of appointment (755 ILCS 5/18-2).
- Mailing Notice: The personal representative must mail written notice to each known creditor within three months of qualification (755 ILCS 5/18-2).
Hypothetical Scenario: Suppose John Doe died on January 1, 2020. His executor published notice in the Sangamon County Journal on January 20, 2020, and mailed notices to known creditors by February 1, 2020. As of March 1, 2022, Jane Client wishes to rely on the two-year rule to bar late claims.
Steps to Verify Compliance
- Review Court File: Obtain certified copies of the proof of publication and mailing affidavit filed with the probate clerk, showing dates and recipients.
- Check Docket Entries: Confirm entries or minute orders regarding notice publication and mailing in the case docket.
- Obtain Proof from Executor: Request copies of the newspaper affidavit and mailing receipts from the personal representative or their attorney.
- Contact the Newspaper: Verify the publication date and edition for the notice.
- Review Mailing Records: Confirm sending dates via certified mail return receipts or postal service tracking records.
Once notice compliance is confirmed under 755 ILCS 5/18-3, a client may assert that any claim not filed within two years of death is time-barred.
Helpful Hints
- Maintain copies of all probate filings and notices.
- Record key dates (date of death, notice deadlines) in a calendar.
- Consult the probate clerk for guidance on accessing records.
- Consider working with a probate attorney for complex estates.
- Act quickly if notice appears deficient to correct any oversights.