Small Estate Affidavit

Illinois Probate vs. Small Estate Affidavit: Which Process Do I Need?

When a loved one passes away, you may be wondering how to access their bank accounts, safe deposit box, and other assets. In Illinois, you’ll need either Letters of Office issued by the probate court or a Small Estate Affidavit to gain access.

Probate isn’t always necessary to liquidate and administer a decedent’s estate. If certain qualifications are met, an Illinois Small Estate Affidavit can be used instead of going through the formal probate process.

A Small Estate Affidavit is a legal document that allows you to transfer property from the decedent’s estate to the beneficiaries without having to go through probate. This can be a much simpler and faster process than probate, especially if the estate is small and uncomplicated.

To use a Small Estate Affidavit in Illinois, you’ll need to meet the following qualifications:

  • The total value of the estate must be less than $100,000
  • The estate must not include any real property
  • There cannot be any outstanding debts or claims against the estate

If you meet all of these qualifications, you can obtain a Small Estate Affidavit from the Illinois probate court. Once the affidavit is completed and filed, you’ll be able to access the decedent’s assets and transfer them to the beneficiaries.

If you have any questions about whether or not a Small Estate Affidavit is right for you, please consult with an experienced La Grange and Northbrook estate planning attorney at Wilson & Wilson Estate Planning & Elder Law, LLC.

Qualifications for Using a Small Estate Affidavit in Illinois

To qualify for a Small Estate Affidavit in Illinois, the decedent’s estate must meet the following requirements:

  1. The total value of the decedent’s personal estate must be $100,000 or less, excluding assets in trust, jointly owned, or with beneficiary designations.
  2. The decedent must not have owned any real property solely in their name, or any real property that passed to someone else at their death through a transfer on death instrument, trust, or joint tenancy.
  3. There must not be any petitions for letters of office pending with the probate court, and there must not be any letters of office currently issued by the probate court.
  4. There must not be any disputes about the validity of any will that the decedent may have had, or about who the decedent’s heirs are.
Who Can Use the Illinois Small Estate Affidavit?

Under Illinois law, a Small Estate Affidavit must be signed by one or more people who are either heirs of the deceased person or beneficiaries of their will.

The person who signs the Small Estate Affidavit becomes personally responsible for the accuracy of the information in the affidavit. If the information is incorrect, the person who signed the affidavit may be liable for any losses incurred by creditors or heirs.

Who Receives Assets Under the Small Estate Affidavit?

Assets distributed using an Illinois Small Estate Affidavit are distributed in the same manner as they would be distributed through probate. First, the decedent’s final expenses and all claims against the estate must be paid before assets can be distributed to heirs and legatees.

If the estate does not have enough money to pay all of the claims, they should be paid pro rata in accordance with the following order of priority:

  • Funeral and burial expenses, including the reasonable cost of 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.
  • 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, the award is 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.
  • Debts due to the United States.
  • Money due to employees of the decedent.
  • Money and property received or held in trust by the decedent that cannot be identified or traced.
  • Debts due the state of Illinois and any county, township, city, town, village, or school district located within Illinois.
  • All other claims.

After all of the above claims have been paid, any remaining assets are distributed to the decedent’s heirs if there is no will, or to the legatees named in the decedent’s will if there is one.

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

A Small Estate Affidavit is a valuable tool for anyone who needs to settle the estate of a loved one without going through the time-consuming and expensive probate process. But the Illinois Small Estate Affidavit is a legal document, and if it isn’t drafted or used correctly, there can be serious consequences.

For this reason, it is strongly advisable to consult with an experienced La Grange and Northbrook estate planning attorney before using a Small Estate Affidavit. An attorney can help you understand the requirements for using a Small Estate Affidavit, and they can ensure that your affidavit is drafted correctly and that you’re using it in accordance with the law.

Here are some of the risks of using a Small Estate Affidavit incorrectly:

  • You may be personally liable for any losses incurred by creditors or heirs if the information in your affidavit is incorrect.
  • You may be accused of fraud if you knowingly misrepresent any information in the affidavit.
  • You may be required to go through probate if your affidavit is not accepted by the court.

To avoid these risks, work with a La Grange and Northbrook estate planning attorney who can help you use a Small Estate Affidavit safely and effectively.

Contact us online to learn more, or call our LaGrange office at (708) 482-7090 or our Northbrook office at (847) 656-8958.

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