In Illinois, probate is the court process for administering the estate of an individual who has passed away. While the probate process is required in certain instances, it can also be avoided in others. In particular, if an Illinois estate qualifies as a “small estate”, the probate court process can oftentimes be avoided entirely through the use of an Illinois Small Estate Affidavit. So what exactly is an Illinois Small Estate Affidavit, and when is it appropriate to use? Let’s take a closer look.
The Small Estate Affidavit in Illinois
If an Illinois estate has under $100,000.00 in personal property and no real estate, it can likely be handled with a Small Estate Affidavit. A Small Estate Affidavit is a form that states facts and information related to an estate showing that the estate is small enough and routine enough to be handled using the Affidavit. The form is typically prepared by the acting representative of the estate, such as the named Executor under the Will or the person who would otherwise serve as the Administrator without a Will in a probate court proceeding.
Also, to clarify, since the Small Estate Affidavit form is in fact an affidavit, it is deemed by Illinois courts to be a sworn statement made under oath by the Affiant (the person signing the Affidavit). Thus, the Affidavit should be prepared carefully in order to ensure that the statements made on the form itself are accurate.
When is an Illinois Small Estate Affidavit appropriate to use versus the probate court process?
As stated above, an estate must have under $100,000.00 in personal property and no real estate for a Small Estate Affidavit to even be considered for use in an estate. However, just because an estate has under $100,000.00 in personal property and no real estate does not mean it is appropriate for a given estate. The facts and circumstances of the estate must still be considered. The following is a list of scenarios where probate may still be a better option for handling a smaller estate:
Thus, after considering the specific issues related to the estate, a better determination can be made regarding the appropriateness of the Small Estate Affidavit for a particular estate. Ultimately, Small Estate Affidavits are best suited for use with estates that are very routine and straightforward (such as an uncontested small estate with one or two bank accounts and no debt).
Liability related to Illinois Small Estate Affidavits
As previously mentioned, the Illinois Small Estate Affidavit is just that: an affidavit. Thus, false statements made on the form itself can subject the Affiant to a possible claim for perjury (making false statements under oath).
In addition, the Small Estate Affidavit in Illinois was amended on January 1, 2015 to allow the funds from the liquidation of an estate asset related to the Affidavit to be distributed directly to the Affiant (versus directly to the beneficiaries of the estate, as was the only option before 2015). The Affiant must then properly pay the final debts of the estate prior to making any distributions to the beneficiaries of the estate. This gives the Affiant more power under the new Small Estate Affidavit form, thus increasing the amount of liability that the Affiant has if payment of debts or distributions to estate beneficiaries are not made properly. In fact, the new Small Estate Affidavit form has two new paragraphs that clearly state the Affiant’s duties with respect to payment of estate claims, as follows:
7.5) I understand that all valid claims against the decedent’s estate described in paragraph 7 must be paid by me from the decedent’s estate before any distribution is made to any heir or legatee. I further understand that the decedent’s estate should pay all claims in the order set forth above, and if the decedent’s estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata.
10.5) I understand that the decedent’s estate must be distributed first to satisfy claims against the decedent’s estate as set forth in paragraph 7.5 of this affidavit before any distribution is made to any heir or legatee. By signing this affidavit, I agree to indemnify and hold harmless all creditors of the decedent’s estate, the decedent’s heirs and legatees, and other persons, corporations, or financial institutions relying upon this affidavit who incur any loss because of reliance on this affidavit, up to the amount lost because of any act or omission by me. I further understand that any person, corporation or financial institution recovering under this indemnification provision shall be entitled to reasonable attorney’s fees and the expenses of recovery.
Because of the liability for Affiants related to Illinois Small Estate Affidavits, particularly under the new Small Estate Affidavit form, it is advisable for Affiants with more complicated small estates to consult with an attorney experienced with Small Estate Affidavits and the probate court process to ensure that the estate is being handled properly with the Affidavit.
Does an Illinois Small Estate Affidavit form need to be notarized to be valid?
Before 2015, the Illinois Small Estate Affidavit form did not need to be notarized to be valid. However, under the new 2015 Small Estate Affidavit form, the document now needs to be notarized to be a valid Small Estate Affidavit.
Our Services with Illinois Small Estate Affidavits
Our firm helps families with Small Estate Affidavit matters in Kane, DuPage, Kendall, Will, and Cook Counties. In particular, we prepare the Small Estate Affidavit form, file the original Will (if necessary), assist the client with liquidating bank accounts or other financial accounts, and advise the client on the proper payment of final debts of the estate and distributions to the beneficiaries of the estate. Our services are especially beneficial to clients who are having trouble with banks honoring a Small Estate Affidavit, or who are out-of-state.
Contact our Firm
If you have questions regarding a Small Estate Affidavit matter in the Chicagoland area, complete the form below to set up a free initial consultation today!
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