When the total value of an Illinois decedent's estate is less than $100,000 AND the estate does not own any real estate, then a small estate affidavit ("affidavit") may be able to be used to transfer the property to the decedent's beneficiaries/heirs without opening a formal probate estate. The person who signs the affidavit is known as the affiant. The affiant must make certain representations and declarations as required by the Illinois small estate affidavit statute. If all declarations are made then a third party processing the affidavit is entitled to rely upon it and make distributions based on the representations. While the small estate affidavit can be a very useful tool in appropriate situations, persons considering acting as affiant should be aware that the declarations in the affidavit are essentially made under oath and if the facts are not as presented then the affiant can potentially be held personally liable, even for errors or omissions made in good faith. With this in mind, a small estate affidavit should generally not be used when, among other considerations: -
there are unpaid creditors or funeral expenses; -
the will is of questionable validity, might be contested or is ambiguous; -
the heirship may be disputed; -
there are minor or disabled beneficiaries; -
probate proceedings have already been initiated; or -
all estate assets are not known. When the decedent leaves a Will, the original must be filed with the clerk of the court, a copy should be provided with the affidavit and the terms of the Will control the distribution of assets. When there is no Will, the assets pass to the decedent's heirs according to Illinois intestacy law. Small estate affidavits are commonly used for access to a safe deposit box and for the transfer of automobile title. In such cases, the appropriate entity may have their own form to be used. Keep in mind that a small estate affidavit cannot be used to transfer title to, or to sell, real estate. Copyright © 2006-2009 Law Offices of Robert H. Glorch. All Rights Reserved. Related Statute: Disclaimer: All content provided is brief general information and not intended as legal advice. Always consult an attorney before acting. Please read full disclaimer at the bottom of the page. ********************************************************************************************** The Law Offices of Robert H. Glorch advises clients on the suitability, preparation and submission of small estate affidavits for Illinois decedent's estates. Read Illinois Probate and Probate FAQ for information on Illinois probate. To inquire or to retain representation, read How To Get Started or call us at (847) 991-2250. |
