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Tuesday, June 19, 2018

Small Estate Affidavit

Illinois allows for use of a small estate affidavit, a useful tool for some of those dealing with smaller estates who are looking to avoid formal probate proceedings. A small estate affidavit does not need to be filed with a court. Use of the affidavit allows for the transfer of estate assets without the need of going before a judge or jumping through all of the time consuming hoops involved with formal probate proceedings.

What Estates Qualify for Use of a Small Estate Affidavit?

In order for a small estate affidavit to be used, the following requirements must be met:

  • The gross value of the personal estate must be worth $100,000 or less at the time of death;

  • The estate must not include any real estate;

  • There have been no petitioners for letters of office;

  • The probate court has not issued any letters of office;

  • The affiant must not be aware of any disputes regarding the validity of the will; and

  • The affiant must not be aware of any disputes regarding heirs.

Additionally, there are situations in which it would probably be best not to use a small estate affidavit despite all of the above requirements being met. If there are unpaid creditors of the estate or outstanding funeral expenses, use of the small estate affidavit might be complicated. Also, if any of the beneficiaries of the estate are minors or disabled, the small estate affidavit is generally discouraged.

What is Required to Execute a Small Estate Affidavit?

In order to properly execute a small estate affidavit, the affidavit must state the names and addresses of the heirs that would receive an inheritance under the state laws of intestacy. This means that the heirs listed must be those who would be set to inherit if there had been no valid will in place. While there is no requirement to put heirs or creditors on notice, the person who signs the affidavit, the “affiant,” may still be held financially responsible to creditors of the estate who may suffer a loss due to their reliance on the small estate affidavit.

The affiant must be a beneficiary of the estate. It is generally preferred that the affiant be a resident of Illinois. This, however, is not a requirement. If the affiant is not an Illinois resident, he or she will still be subject to the state’s jurisdiction. This means that they are subject to complying with Illinois state laws on all matters surrounding the execution of the small estate affidavit.

The affiant must include a series of required representations and declarations in the affidavit, such as:

  • All funeral expenses have been paid in full;

  • There are no known unpaid creditor claims against the estate; and

  • A full list of all assets of the estate.

The declarations are made under oath. Third parties are entitled to rely on these declarations. If the declarations prove to be inaccurate, the affiant can be held personally liable, even if the inaccuracies were made in good faith.

Helping You Navigate the Estate Administration Process

After the passing of a loved one, handling the ins and outs of dealing with the estate can seem like an impossible task. M&A Law Firm provides sound legal counsel to provide you with all of the information you need to make the process as seamless as possible. Contact M&A Law Firm, P.C. today. We proudly serve Cook County and Skokie, Illinois.


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