Illinois Regional Archives Depository (IRAD) System Illinois State Archives

Probate Court

The Illinois General Assembly granted probate jurisdiction to the clerk of the county commissioners' court in 1819. This jurisdiction was subject to review and reversal by the commissioners' court. Probate duties included issuing letters of administration for estates, distributing the estates of individuals who died intestate, recording all wills and letters, ruling on contested wills, receiving bonds from administrators, paying witnesses, ordering a final distribution of an estate, ordering the sale of property from an estate for payment of debts, making a pro rata distribution of assets to creditors, appointing guardians for children under the age of fourteen, approving guardians selected by children age fourteen and over, and receiving bonds from those guardians. The circuit court, which was held annually by a judge from the Supreme Court, had appellate jurisdiction in probate matters. 1

Only two years later, in 1821, the functions of the probate court were transferred from the clerk of the county commissioners' court to county probate courts. Probate judges were elected by the General Assembly, and served during good behavior. Their duties included those specified in 1819, with the addition of jurisdiction over bankruptcy and imprisonment for debt cases, until imprisonment for debt was abolished in 1823.2 That year, the judges were limited to a two year term. In 1825, their term was restored to good behavior.3 Jurisdiction over apprentices was added to the list of probate duties in 1833.4

In 1837, probate justices of the peace were established in each county. These justices were elected to four year terms. The county commissioners' court was empowered to reverse the actions and decisions of these justices until 1845, when it lost this authority.5

The Constitution of 1848 moved original jurisdiction in probate cases to the newly created county courts. County judges were elected to four year terms.6 The Constitution of 1870 gave the General Assembly the authority to create probate courts in counties with populations of 50,000 or more.7 This was specified by statute in 1877, when the minimum population for a county probate court was raised to 100,000. Both judge and clerk were elected to four year terms.8 In 1881, the population requirement was dropped to 70,000; in 1933 it was raised again, this time to 85,000. Counties which had populations greater than 70,000 and less than 85,000 were permitted to retain the court by local option.9 In 1953, this local option was extended to counties with populations between 70,000 and 125,000.10

By the terms of the Judicial Amendment of 1962, the functions of both the probate courts and the county courts were transferred to the circuit courts, effective January 1, 1964. Since that date, probate matters have been handled by circuit courts.11

Record Descriptions

11819, pp. 223-233.
2L. 1821, pp. 119-126; L. 1823, pp. 158-159.
3L. 1823, p. 132; L. 1825, pp. 87-88.
4Rev. L. 1833, pp. 68-73.
5L. 1837, pp. 176-178.
6Constitution of 1848, Article V, sections 16-18.
7Constitution of 1870, Article VI, section 20.
8L. 1877, pp. 79-84.
9L. 1881, p. 72; L. 1933, p. 458.
10L. 1953, p. 113.
11Constitution of 1870, 1962 Amendment, Article VI, section 4.