Detailed Answer
1. What Is a Court-Ordered Subpoena in Illinois Probate?
In Illinois, a subpoena is a court document that commands a person or entity to produce records or testify under oath. In probate matters, you use a subpoena duces tecum to gather estate records from banks, custodians, or third parties. You may also issue a deposition subpoena to take oral testimony before trial or hearing.
2. When Can You Obtain a Subpoena?
You must have an active probate case or contested estate matter. First, file a petition for letters of office or a petition to admit a will to probate in your local circuit court. Once the court issues an estate cause number and you serve notice on interested parties, you gain standing to request subpoenas.
3. How to Request and Prepare the Subpoena
- Draft the subpoena on the approved form from the circuit court clerk or use the Illinois Supreme Court form. Include:
- Case title and cause number.
- Name and address of the custodian or witness.
- Date, time, and place for appearance or record production.
- Specific description of documents or records requested.
- Obtain the judge’s signature or clerk’s stamp authorizing issuance.
- File a notice of subpoena issuance with the clerk.
4. Service Requirements
Serve the subpoena at least 7 days before the return date if it commands document production only, or at least 15 days before if it includes testimony. Service must comply with 735 ILCS 5/2-1001: deliver by sheriff, certified process server, or pursuant to court rules. Serve personally on the custodian or authorized representative.
5. Using the Subpoena to Gather Records
On the return date, the custodian must either:
- Produce the requested estate records.
- Object in writing, citing privilege or undue burden. The court then schedules a hearing to resolve disputes.
6. Enforcing Compliance
If a subpoena recipient fails to comply, file a motion to compel under 735 ILCS 5/2-1102. The court may order sanctions or hold the custodian in contempt, requiring them to pay fees or penalties.
Key Statutes
- Subpoena definitions and issuance: 735 ILCS 5/2-1001.
- Enforcement and sanctions: 735 ILCS 5/2-1102.
Disclaimer: This article does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Helpful Hints
- Confirm the probate cause number before drafting the subpoena.
- Use precise language when describing documents to avoid objections.
- Allow extra days for service if mail or out-of-state delivery is required.
- Keep proof of service (affidavit or sheriff’s return) for the court record.
- Prepare for objections; consider alternative methods like stipulations.
- Check local circuit court rules for any additional requirements.
- Consult an attorney if the custodian claims privilege or refuses to comply.