It is no secret that probate can be a lengthy and expensive process. It is for this reason that people often seek to avoid probate if possible. Illinois has recognized that, due to inadequate estate planning, many small estates were needlessly being forced to go through costly probate proceedings. To attempt to remedy the problem of small estates winding their way through probate court, the legislature implemented the Illinois Small Estate Affidavit.
The Illinois Small Estate Affidavit is available to avoid the probate process when the entire personal estate is valued at less $100,000.00 with one major caveat; the estate must not contain real estate. If real estate is removed from the probate estate by using trusts, land trusts, joint tenancy or a transfer on death instrument the Small Estate Affidavit can be of use when the decedent’s total estate is modest.
The Small Estate Affidavit may even be of use when a wealthier individual dies but transfers most of his assets by use of a revocable trust or other instrument. Small Estates Affidavits are important to wealthier people because it is unlikely that absolutely all their personal assets pass outside of probate necessitating the use of a pour-over will to transfer any orphan assets to their trust. A Small Estate Affidavit used in conjunction with a pour-over will can successfully avoid the costs and time of probate.
Who can use an Illinois Small Estate Affidavit?
There are several requirements that must be met in order for a Small Estates Affidavit to be used.
- The gross value of the decedent’s entire personal estate must be worth $100,000.00 or less at the time of death;
- There must not be any real estate in the estate;
- Nobody has petitioned for letters of office and the probate court has not issued any;
- The affiant is not aware of any disputes related to the validity of the will (if there is one) and the heirship of the decedent’s heirs.
Who may execute the Small Estate Affidavit?
In Illinois, the Small Estates Affidavit may be executed by one or more heirs or legatees of the decedent. There is no requirement that all heirs sign. If the affiant is not a resident of Illinois, he submits himself to the jurisdiction thereof. The affiant also becomes liable for loss by creditors, heirs or others who rely on his acts or omissions.
Who receives assets under a Illinois Small Estate Affidavit?
The use of the Small Estates Affidavit does not change the manner by which assets are distributed from an estate. First priority is the the funeral bills. Second is to the surviving spouse or child if entitled to an award. Last, the remaining assets are distributed to the heirs or legatees pursuant to a will or intestate succession.
What does the Small Estates Affidavit allow me to do?
The Small Estates Affidavit allows the legal transfer of property from the decedent’s estate to those entitled to it. The Affidavit also allows the collection of assets held in the decedent’s name and by third parties who will not turn them over absent court authorization. An heir or legatee cannot simply appear at a bank and demand money from the decedent’s account or the contents of a safe-deposit box, letters of office or a Small Estate Affidavit are necessary.
Many people engage in “informal probate” where family members simply take what they want from the decedent’s house. Though distributing property this way seems appealing and expeditious, it is not legal and can cause innumerable problems if there are any disputes. Moreover, banks and other third parties will not turn over property just because an heir asks for it. It is best to avoid “informal probate” and proceed with a proper Small Estates Affidavit and legal counsel to guide the heirs through the process.
Do I need legal counsel to prepare the Illinois Small Estate Affidavit?
Though the Illinois Small Estates Affidavit reduces the time and cost associated with traditional probate, many legal decisions still must be made. The person signing the Affidavit and distributing assets can be liable for improper conduct in completing the affidavit, collecting assets and distributing assets. It is safe to say that most people without legal training will have great difficulty completing the necessary tasks legally. Proper legal counsel will alleviate stress and expedite the proceedings while reducing the chances that the affiant will be sued for misconduct.