Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Illinois Summary:
Under Illinois statute, where as estate
is valued at less than $100,000, an interested party may issue a small estate
affidavit to collect any debts owed to the decedent.
Illinois Requirements:
Illinois requirements are set forth in the statutes below.
CHAPTER 755. ESTATES ACT 5. PROBATE ACT OF 1975
ARTICLE XXV. SMALL ESTATES
Current through P.A. 89-443, approved 12/21/95 5/25-1. Payment or delivery of small estate of decedent upon affidavit
Sec. 25-1. Payment or delivery of small estate of decedent upon affidavit.
(a) When any person or corporation (1) indebted to or holding personal estate of a decedent, (2) controlling the right of access to decedent's safe deposit box or (3) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit in substantially the form hereinafter set forth, that person or corporation shall pay the indebtedness, grant access to the safe deposit box, deliver the personal estate or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in paragraph 11 of the affidavit or to an agent appointed as hereinafter set forth.
(b) Small Estate Affidavit
1. I, (name of affiant) __________________________________________,
on oath state:
(a) My post office address is: _________________________________________
;
(b) My residence address is: __________; and
(c) I understand that, if I am an out-of-state resident, I submit myself
to the jurisdiction of Illinois courts for all matters related to the preparation
and use of this affidavit. My agent for service of process in Illinois
is:
NAME.....................................................................
ADDRESS..................................................................
CITY.....................................................................
TELEPHONE (IF ANY).......................................................
I understand that if no person is named above as my agent for service
or, if for any reason, service on the named person cannot be effectuated,
the clerk of the circuit court of __________ (County) (Judicial Circuit)
Illinois is recognized by Illinois law as my agent for service of process.
2. The decedent's name is __________;
3. The date of the decedent's death was __________, and I have attached
a copy of the death certificate hereto.
4. The decedent's place of residence immediately before his death was
__________;
5. No letters of office are now outstanding on the decedent's estate
and no petition for letters is contemplated or pending in Illinois or in
any other jurisdiction, to my knowledge;
6. The gross value of the decedent's entire personal estate, including
the value of all property passing to any party either by intestacy or under
a will, does not exceed $100,000. (Here, list each asset, e.g., cash, stock,
and its fair market value.);
7. (a) All of the decedent's funeral expenses have been paid, or (b)
The amount of the decedent's unpaid funeral expenses and the name and post
office address of each person entitled thereto are as follows:
Name and post office address Amount
(Strike either 7(a) or 7(b)). 8. There is no known unpaid claimant
or contested claim against the decedent, except as stated in paragraph
7.
9. (a) The names and places of residence of any surviving spouse, minor
children and adult dependent* children of the decedent are as follows:
Name and Place of Age of Relationship Residence minor child
* (Note: An adult dependent child is one who is unable to maintain
himself and is likely to become a public charge.) (b) The award allowable
to the surviving spouse of a decedent who was an Illinois resident is $__________
($10,000, plus $5,000 multiplied by the number of minor children and adult
dependent children who resided with the surviving spouse at the time of
the decedent's death. If any such child did not reside with the surviving
spouse at the time of the decedent's death, so indicate).
(c) If there is no surviving spouse, the award allowable to the minor
children and adult dependent children of a decedent who was an Illinois
resident is $__________ ($10,000, plus $5,000 multiplied by the number
of minor children and adult dependent children), to be divided among them
in equal shares.
10. (a) The decedent left no will. The names, places of residence and
relationships of the decedent's heirs, and the portion of the estate to
which each heir is entitled under the law where decedent died intestate
are as follows:
Name, relationship Age of Portion of and place of residence minor Estate
OR
(b) The decedent left a will, which has been filed with the clerk of
an appropriate court. A certified copy of the will on file is attached.
To the best of my knowledge and belief the will on file is the decedent's
last will and was signed by the decedent and the attesting witnesses as
required by law and would be admittable to probate. The names and places
of residence of the legatees and the portion of the estate, if any, to
which each legatee is entitled are as follows:
Name, relationship Age of Portion of and place of residence minor Estate
(Strike either 10(a) or 10(b)).
(c) Affiant is unaware of any dispute or potential conflict as to the
heirship or will of the decedent.
11. The property described in paragraph 6 of this affidavit should
be distributed as follows:
Name Specific sum or property to be distributed
The foregoing statement is made under the penalties of perjury*.
.........................................................................
Signature of Affiant
* (Note: A fraudulent statement made under the penalties of perjury
is perjury, as defined in Section 32-2 of the Criminal Code of 1961.)
(c) Appointment of Agent. If safe deposit access is involved or if sale of any personal property is desirable to facilitate distribution pursuant to the small estate affidavit, all persons named in paragraph 11 of the small estate affidavit (excluding minors and unascertained or disabled persons) may in writing appoint one or more persons as their agent for that purpose. The agent shall have power, without court approval, to gain access to, sell, and distribute the property for the benefit of all persons named in paragraph 11 of the affidavit; and the payment, delivery, transfer, access or issuance shall be made or granted to or on the order of the agent.
(d) Release. Upon payment, delivery, transfer, access or issuance pursuant to a properly executed affidavit, the person or corporation is released to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate. Such person or corporation is not required to see to the application or disposition of the property; but each person to whom a payment, delivery, transfer, access or issuance is made or given is answerable therefor to any person having a prior right and is accountable to any representative of the estate.
(e) The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors and heirs of the decedent and other persons relying upon the affidavit who incur loss because of such reliance. That indemnification shall only be up to the amount lost because of the act or omission of the affiant. Any person recovering under this subsection (e) shall be entitled to reasonable attorney's fees and the expenses of recovery.
(f) The affiant of a small estate affidavit who is a non-resident of Illinois submits himself or herself to the jurisdiction of Illinois courts for all matters related to the preparation or use of the affidavit. The affidavit shall provide the name, address, and phone number of a person whom the affiant names as his agent for service of process. If no such person is named or if, for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of the county or judicial circuit of which the decedent was a resident at the time of his death shall be the agent for service of process.
(g) Any action properly taken under this Section, as amended by Public Act 93‑877, on or after August 6, 2004 (the effective date of Public Act 93‑877) is valid regardless of the date of death of the decedent.
5/25-3. Recovery upon refusal to pay or deliver Sec. 25-3. Recovery upon refusal to pay or deliver. If a person or corporation to whom an affidavit under Section 25-1 or Section 25-2 is delivered refuses to pay, deliver, transfer or issue the personal estate as provided by this Article, it may be recovered in a civil action by or on behalf of the person entitled to receive it upon proof of the facts required to be stated in the affidavit. For the purpose of the action the affidavit is prima facie proof of the facts stated therein.
Small Estate Affidavit for Estates under 100,000
