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In most states, however, there is the option to use a small estate affidavit when the assets of the estate are under a certain dollar amount, which varies by state. An attorney is not required to file a small estate affidavit, although it may be helpful to consult with one prior to filing the small estate affidavit.
The Illinois small estate affidavit provides a streamlined way for an heir-at-law of a decedent to gather and distribute the assets of the estate of a person who died, provided that no other petition to open an estate in probate court has been filed and that the assets of the person who died do not exceed $100,000.
A small estate affidavit is a way for a person's property to be transferred when they die without having to go to court.Read more about Using a small estate affidavit. If you are not an Illinois resident, you need to provide the information of someone who is. You should include their name, address, and phone number.
A small affidavit does not need to be filed with a court. You can find the small estate affidavit form from the Illinois Secretary of State online or in person at your local circuit county clerk's office.
The total amount of property in the estate is worth $100,000 or less; The person who died did not own any real estate , or they owned real estate that went to someone else when they died. A court has not given out any letters of office.
Fill in your name and information in #1. Complete the information about the decedent in #2-4. Mark either #7a or #7b depending on what is true. Complete #9a to indicate the names of the spouse and children if any.
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.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.
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: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.)
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.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.
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: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.)