Small Estate Affidavit

Do I Need Probate, or do I Need a Small Estate Affidavit?

When your loved one passes away, you will quickly realize that you will not be able to walk into a bank, and get access to their bank account, or check the contents of their safety deposit box. In Illinois, you will either need Letters of Office, issued from the probate court, or a Small Estate Affidavit. Under Illinois law, probate is not always necessary in order to liquidate and administer a decedent's assets. If specific qualification are met, a Small Estate Affidavit can be utilized instead of going through the formal probate process. A Small Estate Affidavit allows for the legal transfer of property from the decedent's estate to those that are entitled to it.

Qualifications for Using Small Estate Affidavit?

For a Decedent's estate to qualify for the use of a Small Estate affidavit, several requirements must be met:

  1. The gross value of the decedent's entire personal estate must be worth $100,000.00 or less at the time of death, excluding assets in trust, jointly owned, or with beneficiary designations;
  2. There must not be any real estate solely in the name of the decedent, or they owned real estate that went to someone else when they died through a transfer on death instrument, trust, or joint tenancy;
  3. There must not be any petitions for letters of office with the probate court, and there must not be any current letters of office issued by the probate court;
  4. There must not be any disputes as to the validity of any Will the decedent may have had, and there must not be any disputes as to who the decedent's heirs are.
Who May Use the Small Estate Affidavit?

A Small Estate Affidavit must be executed by one or more individuals who are either the heir or the Decedent, or legatee of the decedent (named as beneficiary in the Decedent's Will). The individual who executes the Small Estate Affidavit becomes personally liable for the information included in the Small Estate Affidavit for any loss by creditors, heirs of others, that may come of any incorrect information.

Who Receives Assets Under The Small Estate Affidavit?

Assets distributed using a Small Estate Affidavit are distributed in the same manner that the assets would be distributed through probate. First, the Decedent's final expenses and all claims against the Decedent's estate need to be paid before any assets can be distributed to any heirs and legatees. If the estate has insufficient funds to pay all the claims, the claims should be paid pro rata according to the order of priority outlined below. The final expenses are ranked in priority to determine with final expenses get paid first as outlined below:

  • (1) Funeral and burial expenses, including the reasonable amount paid for a burial space, crypt, or niche, a marker on the burial space, and care of the burial space, crypt, or niche, expenses of administration and statutory custodial claims;
  • (2) Surviving spousal award or child's award, which is $20,000 to the surviving spouse plus $10,000 for each minor or adult dependent child living with the surviving spouse at the time of death. If there is no surviving spouse, then this award would be paid to the minor or adult dependent children in the amount of $20,000, plus $10,000 multiplied by the number of minor and adult dependent children.
  • (3) debts due to the United States;
  • (4) Money due to employees of the decedent;
  • (5) Money and property received or held in trust by the decedent that cannot be identified or traced;
  • (6) Debts due the state of Illinois and any county, township, city, town, village or school district located within Illinois;
  • (7) All other claims

After all the above claims have been paid, any remaining assets are then to be distributed to the heirs of the decedent if there is no Will, or the legatees named within the decedent's Will.

Do I Need an Attorney to Prepare the Illinois Small Estate Affidavit?

A Small Estate Affidavit is an important tool for anyone looking to manage the estate of a family member or loved one, while saving time and money by avoiding probate. Although a seemingly simple document, if improperly drafted or used, it comes with high risks to the individual seeking to use the Small Estate Affidavit. Therefore, it is important and advisable to seek the assistance of an attorney to fully understand the rules and regulations regarding Small Estate Affidavit, and to ensure proper drafting and usage.

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