When Can An Illinois Estate Be Distributed With A Small Estate Affidavit Instead of Probate?
When an Illinois resident dies and assets do not pass by joint tenancy, trust, or Transfer On Death Instrument, a relative or close friend will generally step forward to help distribute the deceased person’s property to heirs or legatees as directed by the will or, in the absence of a will, to the nearest relatives as directed by the Illinois laws of intestate succession.
If the estate is distributed with involvement of the probate court, the person in charge of distributing the deceased person’s property is called the executor when there is a will or the administrator when there is no will. Outside of the probate process, this person might be referred to as the representative of the estate. This person will choose the best method of wrapping up the estate depending on many factors.
How do I know if a Small Estate Affidavit can be used to distribute the Illinois estate?
Some estates cannot be administered with a small estate affidavit, but with many estates the executor, administrator or representative has a choice.
Here is an example of the Small Estate Affidavit form from the Cook County Circuit Clerk’s website.
Here is a table that illustrates some of the factors to consider in making the choice between probate and the Small Estate Affidavit:
|Small Estate Affidavit||Probate|
|Probate assets worth $100,000 or less|
|Decedent owned real estate that was not transferred by joint tenancy, trust or Transfer On Death Instrument|
|No real estate to distribute|
|Assets are not sufficient to pay administrative expenses and debts|
|Creditors have all been identified and paid|
|Potential claims for liability that have not been filed in court|
|No concerns about outstanding liability claims|
|Multiple heirs or legatees and assets are difficult to divide evenly|
|Assets easy to identify and divide or there is only one heir|
|There are assets in the hands of others who are not willing to relinquish possession|
|No need for court assistance in marshalling assets or gaining possession of assets|
|Executor is having trouble getting possession of digital assets or social media accounts|
|No complex issues like accessing digital assets, collecting debts, or valuing unique objects|
|One of the heirs or legatees is a child or a disabled individual|
|There are no minor or disabled heirs or legatees|
|A family member has a custodial care claim for living with the decedent and providing care|
|The decedent was the victim of exploitation and the court’s assistance is needed to recover assets|
|The will directed executor to hold funds in a supplemental needs trust if an heir or legatee was disabled|
|There are heirs whose addresses are unknown|
What if we used a small estate affidavit and found out later that there were unpaid debts or claims or unknown heirs?
The person who signs the small estate affidavit can be personally liable for the debts or claims plus attorney’s fees and expenses.
The form states: “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.”
How does the family know whether to use a small estate affidavit?
Before distributing the assets a family would be wise to get legal advice from attorney licensed in Illinois who has experience with the probate process.
How much would the probate process cost?
Most attorneys charge by the hour. All estates are different.
Fees will be lower when:
- The executor or administrator is organized and takes care of matters promptly;
- The heirs or legatees communicate and agree about valuation and distribution;
- The real estate can be easily sold or transferred to an heir or legatee;
- The assets are adequate to pay all claims;
- There are no assets in other states.
Joni Beth Bailey is an attorney in Southern Illinois who handles estate planning and estate administration.