Not every estate is required to go through probate. When an estate is small (and uncomplicated) or when the decedent successfully planned to avoid probate, other methods of administration may apply instead of probate.
Small Estate Affidavits
When the total value of an Illinois decedent’s personal estate is less than $100,000, then a small estate affidavit (“affidavit”) may be able to be used to transfer the personal estate 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 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 the transfer of automobile title or a small bank account. Keep in mind that a small estate affidavit cannot be used to transfer title to, or to sell, real estate.
The small estate affidavit is not filed with, or certified by, any court or judge. It is simply provided to the third party that is holding asset(s) that you are asking be distributed.
Related Statute/Web Links:
- Small Estates – Article XXV of Illinois Probate Act
- Small Estate Affidavit form provided by Cook County Clerk of Court (rev. 4-28-15)
- Small Estate Affidavit form provided by DuPage County Clerk of Court (pre-2015 deaths)
- Small Estate Affidavit provided by McHenry County Clerk of Court (rev. 2015)
- Small Estate Affidavit form provided by Illinois Secretary of State
Bond in Lieu of Probate for Real Estate
Title to real estate held in a decedent’s sole name may on occasion be able to transferred via a title company’s bond in lieu of probate instead of through probate administration. While there is no statutory authority for a bond in lieu of probate, some title companies will insure a transfer or sale of real estate based upon certain representations regarding the estate’s Will, heirs and creditors. The title company will ask the heirs for a personal undertaking of liability and will also typically charge a bond premium for the service to compensate themselves for the risk it is undertaking by insuring title without probate. Many of the same considerations and limitations as with a small estate affidavit apply to a bond in lieu. It may not be appropriate if there are Will, heirship, creditor or other issues. A title company is under no duty to accept a bond in lieu, use of this method is at their discretion.
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