Small Estate Affidavits In Illinois

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When the total value of an Illinois decedent’s personal estate is less than $100,000, a small estate affidavit can be used to administer decedent’s assets, instead of opening a formal probate.

Illinois law governing small estates and small estate affidavits is found at 755 ILCS 5/Art. XXV – Small Estates.

What Is a Small Estate Affidavit in Illinois?

A small estate affidavit is a form that can be used to administer a decedent’s estate assets without opening a formal probate.  An administrator is permitted to use a small estate affidavit to collect a decedent’s assets, pay a decedent’s debts, and distribute the remaining assets to the decedent’s heirs and beneficiaries.

When Can a Small Estate Affidavit Be Used?

A small estate affidavit can be used in Illinois if:

  1. Decedent’s assets amount to less than $100,000 and do not include real estate.
  2. All of the decedent’s creditors will be paid.
  3. No creditors’ claims are contested by the administrator.
  4. There are no disputes between heirs and beneficiaries.

 

The administrator must verify in the affidavit that all of the above conditions are met in order to use a small estate affidavit.  If all of the required verifications are made, then a third party presented with the small estate affidavit is entitled to rely upon it and make distributions based on the representations therein.

How Is a Small Estate Affidavit Used In Illinois?

Once the small estate affidavit is completed, the administrator will have the power to marshal and distribute the decedent’s property.  The administrator can present the form to the decedent’s banks and other people or entities holding the decedent’s money.  Along with the sworn small estate affidavit, the administrator will have to present a copy of the decedent’s death certificate, and a certified copy of the decedent’s will.

When Should a Small Estate Affidavit Not Be Used?

There are certain situations where an Illinois small estate affidavit should generally not be used.  These situations include when:

  1. Decedent has unpaid creditors;
  2. Decedent has unpaid funeral expenses;
  3. The will might not be valid, or might be contested;
  4. Formal probate proceedings have already been initiated;
  5. A dispute might exist as to the rightful heirs or beneficiaries of the estate.

 

A small estate affidavit is a great tool when the distribution of decedent’s assets will be simple, and decedent’s creditors will all get paid.  If there are any contested issues regarding decedent’s assets, last wishes, or heirs, an Illinois small estate affidavit should not be used.

Illinois Small Estate Affidavit Form

You can find the small estate affidavit form from the Illinois Secretary of State here.

The county clerk where the decedent resided will also have the form small estate affidavit in the clerk’s office and usually online as well:

 

Do You Have To File a Small Estate Affidavit In Illinois?

No.  A small estate affidavit does not need to be filed with the court.