Jurisdiction in an Illinois Contested Estate Case

Jurisdiction in an Illinois Contested Estate Case

Provided By: Alan G. Orlowsky

Consider the following hypothetical situation: a man who has lived in Illinois for the past ten years dies after a lengthy illness. The man had created a will long ago while he was living in California. The man still has family, property, and assets located in California but, since the creation of his will, also accumulated a substantial amount of property and assets in Illinois. But because the man did not update his will after moving to Illinois and accumulating these additional assets, they are not addressed in his will. Further complicating matters is the fact that some charitable institutions in Illinois are now claiming the man intended to leave them with a substantial amount of his Illinois assets.

A Question of Jurisdiction 

Jurisdiction is a legal term referring to the power of a particular court to hear and decide a specific legal case brought before it. In any type of legal proceeding – civil, criminal, or probate, for example – the court must have jurisdiction over both the parties to the dispute and the subject matter of the dispute in order to be able to render a legally-enforceable judgment.

In Illinois, a court can exercise jurisdiction over the estate of a deceased individual if that individual was domiciled in Illinois at the time of his or her death or if that person owned property in Illinois at the time of his or her death. In the hypothetical case described above, the man’s relatives could certainly initiate a probate proceeding in Illinois and, because his or her assets were not covered by a will, the assets located in Illinois could be disposed of pursuant to the laws of Illinois. (The man’s estate consisting of his Illinois assets and property would be disposed of as if the man had died intestate, the existence of the will in California notwithstanding.)

But the man also possessed property in California – does California have any say in how the man’s estate is handled? If the man owned real estate in California at the time of his or her death, the man’s relatives may need to file a separate probate proceeding in California to dispose of the real property. California may be able to exercise jurisdiction over the assets the man owned in Illinois (provided the man did not own any real property in Illinois). The relatives of the man have a decision to make: should they probate the man’s estate in California, in Illinois, or both? More importantly, what if his relatives cannot agree on what state is the appropriate state to handle his estate?

Resolving Competing Jurisdiction Disputes 

Where two or more states can lawfully exercise jurisdiction over a decedent’s estate, each court will need to decide whether it will exercise jurisdiction and, if so, the extent of its jurisdiction. This can be an extremely complex issue to litigate and may require legal counsel in both Illinois and in the other state to coordinate with one another. A court may decide it does not have jurisdiction to probate the decedent’s estate if it does not find any substantial connection between the state and the decedent. A court may also decide it has jurisdiction over the decedent’s entire estate (if that state is the first state in which an action to probate the estate is filed and the out-of-state property is personal in nature), or it may decide to probate only some (i.e., real property located in that state) of the decedent’s estate.

Orlowsky & Wilson is an Illinois law firm providing legal representation and counsel to relatives, heirs, and/or beneficiaries of decedents involved in contested probate proceedings. Our legal team can assist clients in and around Highland Park, Northbrook, Glenview, Glencoe, Evanston, and/or Skokie. Call our office today at (847) 325-5559 or contact us through our website.



Updated as of July 2019
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