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When Can An Illinois Estate Be Distributed With A Small Estate Affidavit Instead of Probate?

Tuesday, 23 May 2017 16: 40
Written by Joni B. Bailey
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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 Fotolia_125212287_Subscription_Monthly_M.jpg  
Decedent owned real estate that was not transferred by joint tenancy, trust or Transfer On Death Instrument   Fotolia_125212287_Subscription_Monthly_M.jpg
No real estate to distribute Fotolia_125212287_Subscription_Monthly_M.jpg  
Assets are not sufficient to pay administrative expenses and debts   Fotolia_125212287_Subscription_Monthly_M.jpg
Creditors have all been identified and paid Fotolia_125212287_Subscription_Monthly_M.jpg  
Potential claims for liability that have not been filed in court   Fotolia_125212287_Subscription_Monthly_M.jpg
No concerns about outstanding liability claims Fotolia_125212287_Subscription_Monthly_M.jpg  
Multiple heirs or legatees and assets are difficult to divide evenly   Fotolia_125212287_Subscription_Monthly_M.jpg
Assets easy to identify and divide or there is only one heir Fotolia_125212287_Subscription_Monthly_M.jpg  
There are assets in the hands of others who are not willing to relinquish possession   Fotolia_125212287_Subscription_Monthly_M.jpg
No need for court assistance in marshalling assets or gaining possession of assets Fotolia_125212287_Subscription_Monthly_M.jpg  
Executor is having trouble getting possession of digital assets or social media accounts   Fotolia_125212287_Subscription_Monthly_M.jpg
No complex issues like accessing digital assets, collecting debts, or valuing unique objects Fotolia_125212287_Subscription_Monthly_M.jpg  
One of the heirs or legatees is a child or a disabled individual   Fotolia_125212287_Subscription_Monthly_M.jpg
There are no minor or disabled heirs or legatees Fotolia_125212287_Subscription_Monthly_M.jpg  
A family member has a custodial care claim for living with the decedent and providing care   Fotolia_125212287_Subscription_Monthly_M.jpg
The decedent was the victim of exploitation and the court’s assistance is needed to recover assets   Fotolia_125212287_Subscription_Monthly_M.jpg
The will directed executor to hold funds in a supplemental needs trust if an heir or legatee was disabled   Fotolia_125212287_Subscription_Monthly_M.jpg
There are heirs whose addresses are unknown   Fotolia_125212287_Subscription_Monthly_M.jpg




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 a Southern Illinois Social Security Disability attorney.



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