In Illinois, an executor is a fiduciary whose legal duty runs to the estate and its interested persons — not to the executor personally. That single principle governs everything that happens in a properly administered Illinois probate estate: who gets paid first, what the accounting must reflect, and what an executor's attorney can and cannot help them do. Understanding it is the difference between administering an estate cleanly and exposing yourself to serious personal liability.

When a loved one dies, someone has to take charge. That person — whether named as executor in a will or appointed by the court as administrator — steps into a role that most people underestimate. It feels natural to think of the job as "handling mom's estate" or "making sure dad's stuff goes to the right people." And in a practical sense, that is the job. But the role carries legal obligations that can create real personal exposure when they are misunderstood or ignored.

A note on terminology: when a person dies with a will, the estate's legal representative is called an executor. When a person dies without a will, that person is called an administrator. The titles differ, but the fiduciary duties, legal obligations, and personal liability exposure are identical under Illinois law. Throughout this article we use "executor" as the more commonly understood term, but everything here applies equally to administrators.

At CTM Legal Group, we handle probate matters in Cook County and throughout Illinois. One of the most important conversations we have with clients — early, clearly, and sometimes more than once — is this one: you do not represent yourself in this role. You represent the estate.

The Executor Is a Fiduciary. Full Stop.

Under Illinois law, an executor is a fiduciary from the moment letters of office are issued. As the Illinois State Bar Association's estate administration materials put it, an executor "has a duty to its beneficiaries to carry out the terms of a Will with the highest degree of fidelity and good faith." See Dick v. Peoples Mid-Illinois Corp., 242 Ill. App. 3d 297 (4th Dist. 1993).

That is not a soft standard. "Highest degree of fidelity and good faith" means the executor's personal interests come last — after the estate's creditors, after the beneficiaries, after the law. Illinois common law, as articulated in Illinois appellate decisions and ISBA practitioner guidance, imposes two foundational obligations on every personal representative: a duty of loyalty and a duty of care.

The duty of loyalty requires the executor to act only for the benefit of the estate and its beneficiaries — not for themselves. It prohibits self-dealing: an executor cannot use their position to benefit themselves or any third party at the estate's expense. The duty of care requires that estate assets be managed with diligence, prudence, and sound judgment throughout administration.

In addition to these common law duties, the Illinois Probate Act of 1975 (755 ILCS 5/) provides the statutory enforcement framework. An executor who fails in these obligations faces a range of consequences — including removal from their position and personal financial liability. 755 ILCS 5/23-2.

The Estate Is the Client. Not the Executor.

This is the point that surprises people most. Many executors are also heirs. They stand to inherit from the same estate they are administering. That overlap is completely normal — and it is exactly why the fiduciary framework exists.

When the Illinois Probate Act defines "interested persons," it includes heirs, legatees, and creditors. 755 ILCS 5/1-2.11. Every one of those parties has legal rights in the estate. The executor's job is to protect and honor those rights — not to manage them in a way that favors their own share of the inheritance.

The moment an executor begins making decisions as an heir rather than as a fiduciary — prioritizing their own distribution, shaping the administration to benefit themselves, or acting in ways that harm creditors or co-beneficiaries — the duty of loyalty is squarely implicated. Illinois courts have held executors personally liable for exactly this kind of conduct. In Prignano v. Prignano, the Illinois Appellate Court affirmed a judgment of over $615,000 against an executor who used his fiduciary role to benefit himself at the estate's expense. 405 Ill. App. 3d 801 (2d Dist. 2010).

Creditors Come Before Heirs

One of the most important — and most misunderstood — aspects of the executor's role involves the estate's creditors. Under the Illinois Probate Act, valid claims against an estate must be identified, noticed, and paid before any distributions are made to heirs or legatees. 755 ILCS 5/18-13.

This is not optional. An executor who circumvents creditors to accelerate distributions to heirs — including to themselves — has breached their fiduciary duty. The creditors are interested persons with legal rights. Their claims do not disappear because the executor would prefer they did.

An executor who distributes assets without satisfying valid claims, and then finds that creditor liabilities arise after the fact, can face personal exposure to make those creditors whole. ISBA estate administration guidance specifically warns executors to obtain refunding agreements from beneficiaries at closing for exactly this reason — because without protection, the executor bears the risk.

The Accounting Is a Legal Document, Not a Narrative

Before an Illinois probate estate can be closed under independent administration, the personal representative must account for every asset collected, every payment made, and every distribution proposed. Interested persons are entitled to review an accounting before the estate closes. These individuals have the opportunity to bring any impropriety they observe to the Court's attention for redress. 755 ILCS 5/28-11. In supervised administration, the court reviews and approves accounts, and a court-approved accounting — in the absence of fraud, accident, or mistake — binds all persons given proper notice. 755 ILCS 5/24-2.

The accounting is a sworn document. The Illinois Probate Act is direct on what happens when it isn't accurate: a person who makes a false affidavit under the Act "is guilty of perjury and upon conviction shall be punished as provided by the statutes of this State in relation to the crime of perjury." 755 ILCS 5/1-8.

An executor who presents an inaccurate accounting — one that misrepresents what happened to estate assets — is not just making an administrative error. They are potentially committing perjury and exposing themselves to claims of devastavit: the legal term for mismanagement of estate assets. Under 755 ILCS 5/24-18, a representative is liable to any person aggrieved by mismanagement of the estate committed to their care.

What Happens When a Fiduciary Duty Is Breached

The consequences of fiduciary breach in Illinois probate are serious and well-established. An executor who breaches their duties can face:

• Personal financial liability — required to repay losses out of their own pocket, not from estate assets. 755 ILCS 5/24-18.
• Surcharge by the court — ordered to compensate the estate or its beneficiaries for damages caused by misconduct.
• Removal from their position — the probate court can remove an executor for misconduct. 755 ILCS 5/23-2.
• Forfeiture of fees — a court can deny or reduce executor compensation as a consequence of breach.

These are not theoretical risks. Illinois appellate courts have imposed all of these remedies in reported decisions. The fiduciary standard exists because someone — a grieving family, a creditor, a co-beneficiary — is counting on the executor to do the job honestly.

Self-Interest Is the Trip Wire

Most people who serve as executors do so out of love and a sense of responsibility. They are honoring a parent's or sibling's memory by making sure the estate is handled properly. That impulse is the right one, and the law protects it.

When you act in service of the estate — following the law and your attorney's guidance — you are protected. Illinois courts do not penalize good-faith judgment calls by executors who are trying to do the right thing. What the law does not protect is the executor who treats the estate as an extension of their own interests: who sees the accounting as a document to be shaped rather than a record to be made accurate, who prioritizes their inheritance over a creditor's valid claim, or who uses their position to benefit themselves at the estate's expense.

An act of service — and that is what probate administration is — becomes a source of serious personal legal exposure the moment it becomes an act of self-interest.

Why Probate Attorneys Sometimes Say No

When CTM Legal Group represents a personal representative in a probate matter, our client is the estate — and the personal representative acting in their fiduciary capacity on its behalf. Our attorneys are bound by the Illinois Rules of Professional Conduct and cannot assist a client in conduct that violates their legal obligations, including the fiduciary duties imposed by Illinois common law and the Probate Act.

When we tell a client that something cannot be done, or should not be done, it is because we can see the legal exposure they may not. An inaccurate accounting. A distribution that skips ahead of creditors. A decision made in the executor's personal interest rather than the estate's. These are not administrative technicalities — they are the kinds of acts that Illinois courts take seriously, and that can turn a family's effort to honor a loved one into years of litigation and personal financial liability.

That conversation is one of the most important things a probate attorney can have with a client. We take it seriously, and we will always have it honestly.

Frequently Asked Questions

What is an executor's fiduciary duty in Illinois?

Under Illinois law, an executor is a fiduciary whose duty runs to the estate and all of its interested persons — including heirs, legatees, and creditors — not to the executor personally. Illinois courts have held that an executor must act with the highest degree of fidelity and good faith on behalf of the estate. This means the executor's personal interests come last, after the estate's obligations are fully satisfied.

Can an executor be personally liable for losses to an Illinois estate?

Yes. Under 755 ILCS 5/24-18, a personal representative is personally liable to any person aggrieved by mismanagement of the estate. Illinois courts can surcharge an executor — ordering them to repay losses out of their own pocket — and can remove them from their position entirely. In Prignano v. Prignano, 405 Ill. App. 3d 801 (2d Dist. 2010), the Illinois Appellate Court affirmed a judgment of over $615,000 against an executor for breach of fiduciary duty.

Do creditors get paid before heirs in an Illinois estate?

Yes. Under 755 ILCS 5/18-13, valid claims against an Illinois estate must be paid before any distributions are made to heirs or legatees. An executor who distributes assets to heirs while bypassing creditors breaches their fiduciary duty and can be held personally liable to those creditors.

What happens if an executor files a false accounting in Illinois?

Filing a false accounting in an Illinois probate proceeding is extremely serious. Under 755 ILCS 5/1-8, a person who makes a false affidavit under the Probate Act "is guilty of perjury and upon conviction shall be punished as provided by the statutes of this State in relation to the crime of perjury." An inaccurate accounting can also expose the executor to claims of devastavit — mismanagement of estate assets — and personal financial liability under 755 ILCS 5/24-18.

What is the difference between an executor and an administrator in Illinois?

When a person dies with a will, the estate's legal representative is called an executor. When a person dies without a will, that person is called an administrator. The titles differ, but under Illinois law the fiduciary duties, legal obligations, and personal liability exposure are identical for both roles.

Why does a probate attorney sometimes refuse to do what a client asks?

A probate attorney represents the personal representative acting in their fiduciary capacity on behalf of the estate — not the executor's personal interests. Illinois attorneys are bound by the Rules of Professional Conduct and cannot assist a client in conduct that violates the executor's legal obligations to the estate, its creditors, or its beneficiaries. When a probate attorney says no, it is typically because complying with the request would expose the executor to personal liability or constitute a breach of their fiduciary duty.

Questions About Illinois Probate?

If you have been named as executor or administrator of an Illinois estate — or if you are a beneficiary or creditor concerned about how an estate is being administered — CTM Legal Group can help. We handle probate and estate administration in Cook County and throughout Illinois, and we understand the fiduciary obligations that govern every step of the process.

Contact CTM Legal Group at (312) 818-6700 or reach us online to schedule a consultation.

About the author: William M. Tasch is Managing Partner and co-founder of CTM Legal Group, a firm handling civil litigation in Chicago, Illinois. He serves on the Illinois State Bar Association's Standing Committee for Law Office Management and Economics as well as the Standing Committee on the Delivery of Legal Services. He serves as the co-chair of the latter committee's AI subcommittee. He has handled probate, estate litigation, and other civil litigation matters in Cook County and throughout Illinois since 2010.

This article is provided for general informational purposes and does not constitute legal advice. Every estate is different. For guidance specific to your situation, consult a qualified Illinois probate attorney.