Illinois Small Estate Affidavit and the Law

By Jane Meggitt

When a person dies, his estate must go through the probate process. However, Illinois allows small estates, estates worth less than $100,000 and containing no real estate, to avoid the probate process if the executor files a small estate affidavit. The law governing small estates differs somewhat depending on whether the decedent left a will or died intestate, meaning without a will.

Illinois Law on Small Estates

The statutes regarding small estates in Illinois are found in the Probate Act of 1975, section 25-1. When compiling the affidavit, the executor named in the will must list all of the decedent's personal property, such as bank and brokerage accounts, mutual funds, motor vehicles, jewelry and art. A certified copy of the death certificate and a certified copy of the will must be included. If the decedent died intestate, a personal representative appointed by the probate court must list the names and addresses of all known heirs and the portion of the estate they are entitled to under the Illinois laws of intestate succession.

Eligibility

Only the person who is the executor of the estate may file the Illinois small estate affidavit. If there is a will, it must be filed with the probate court of the county the decedent resided in at the time of his death within 30 days of the death date. Besides the monetary amount and lack of real estate, the probate court cannot have issued "letters of office." Similar to letters testamentary in other states, these letters allow the executor authority to distribute estate assets according to the terms of the will. All of the decedent's outstanding debts must be paid, with the exception of funeral expenses. Small estate affidavits cannot be used in situations where the will is disputed by heirs or beneficiaries.

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Motor Vehicles

If the decedent owned a motor vehicle titled solely in his name, additional steps are necessary. A motor vehicle's title must be transferred to the heir or beneficiary through the office of the Illinois Secretary of State. Forms are available at local Secretary of State's offices.

Using the Affidavit

Once the executor receives the affidavit, she may give it to any individual or company in possession of property belonging to the estate. That entity must follow directions stated in the affidavit and distribute estate property. Once the transfer is complete, the entity distributing the estate property cannot be sued by the estate or heirs. If the entity in possession of the property refuses to relinquish it per the affidavit's direction, the entity may face suit in state court.

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What Is an Heir Affidavit?

References

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