Wills and Estates – Small Estates – Illinois
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.
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 are set forth in the statutes below.
755ILCS 5/25-1 PROBATE ACT OF 1975
ARTICLE XXV. SMALL ESTATES
(755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)
Sec. 25-1. Payment or delivery of small estate of decedent upon affidavit.
(a) When any person, corporation, or financial institution:
(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, corporation, or financial institution 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 the affidavit or to an agent appointed as hereinafter set forth.
(b) Small Estate Affidavit
I, (name of affiant) , on oath state:
1. (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 and other debts have been paid, or
(b) All of the decedent’s known unpaid debts are listed and classified as follows (include the name, post office address, and amount):
Class 1: funeral and burial expenses, which include
reasonable amounts paid for 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 as follows:
Class 2: the surviving spouse’s award or child’s award,
if applicable, as follows:
Class 3: debts due the United States, as follows:
Class 4: money due employees of the decedent of not more
than $800 for each claimant for services rendered within 4 months prior to the decedent’s death and expenses attending the last illness, as follows:
Class 5: money and property received or held in trust by
the decedent which cannot be identified or traced, as follows:
Class 6: debts due the State of Illinois and any county,
township, city, town, village, or school district located within Illinois, as follows:
Class 7: all other claims, as follows:
(Strike either 7(a) or 7(b)).
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.
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 Relationship
Place of Residence
Age of 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 $………. ($20,000, plus $10,000 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 $………. ($20,000, plus $10,000 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 and place of residence
Age of minor
Portion of estate
(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 and place of residence
Age of minor
Portion of 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.
10.3. My relationship to the decedent or the decedent’s estate is as follows:.
10.5. (The following paragraph should appear in bold type and in not less than 14-point font):
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.
11. After payment by me from the decedent’s estate of all debts and expenses listed in paragraph 7, any remaining 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 Signed and sworn before me on (insert date).
…………………….Notary Public *(Note: A fraudulent statement made under the penalties of perjury is perjury, as defined in Section 32-2 of the Criminal Code of 2012.)
(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, the affiant under the small estate affidavit may in writing appoint one or more persons as the affiant’s agent for that purpose. The agent shall have power, without court approval, to gain access to, sell, and distribute the property in the manner specified in paragraphs 7.5 and 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. The affiant may appoint himself or herself as the designated representative to exercise the powers and perform the duties of an agent described in this subsection (c).
(d) Reliance and Release.
Any person, corporation, or financial institution who acts in good faith reliance on a copy of a document purporting to be a small estate affidavit that is substantially in compliance with subsection (b) of this Section shall be fully protected and released upon payment, delivery, transfer, access or issuance pursuant to such a document 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, corporation, or financial institution 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) Distributions pursuant to an affidavit…
Distributions pursuant to an affidavit substantially in the form set forth in subsection (b) of this Section may be made to the affiant, if so specified in paragraph 11, notwithstanding the disclosure of known unpaid debts. The affiant, acting on behalf of the decedent’s estate, is obligated to pay all valid claims against the decedent’s estate before any distribution is made to any heir or legatee. The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors, heirs, and legatees of the decedent and other persons, corporations, or financial institutions 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, corporation, or financial institution 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…
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…
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.
(h) The changes made by this amendatory Act…
The changes made by this amendatory Act of the 96th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 96th General Assembly.
(i) The changes made by this amendatory Act…
The changes made by this amendatory Act of the 98th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 98th General Assembly.
(Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15.)
(755 ILCS 5/25-2) (from Ch. 110 1/2, par. 25-2)
Sec. 25-2. When appointment of representative of ward unnecessary.
Upon receiving an affidavit that the personal estate of a ward does not exceed $10,000 in value, that no representative has been appointed for his estate and that the affiant is a parent or a person standing in loco parentis to the minor or is the spouse of the ward or, if there is no spouse of the ward, that affiant is a relative having the responsibility of the support of the person under legal disability or ward, any person or corporation indebted to or holding personal estate of the ward may pay the amount of the indebtedness or deliver the personal estate to the affiant. In the same manner and upon like proof, any person or corporation having the responsibility for the issuance or transfer of stocks, bonds or other personal estate may issue or transfer the stocks, bonds or other personal estate to or in the name of the affiant. Upon the payment, delivery, transfer or issuance pursuant to the affidavit, the person or corporation is released to the same extent as if the payment, delivery, transfer or issuance had been made to the legally qualified representative of the ward and is not required to see to the application or disposition of the property.
(Source: P.A. 90-307, eff. 8-1-97.)
(755 ILCS 5/25-3) (from Ch. 110 1/2, par. 25-3)
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. (Source: P.A. 79-328.)