Illinois allows someone with a claim to assets in the estate of a person who has died to collect them without going through formal probate by using a summary administration process employing a small estate affidavit. With a small estate affidavit an heir usually can get access to bank accounts other estate assets much faster and at far less cost than via probate. This process can only be used if the estate is worth less than $100,000, however, and other limitations apply. Talk to a financial advisor to help you plan your estate.
Small Estate Affidavit Basics
A small estate affidavit is a sworn legal document a person can use to assert a claim to assets from the estate of someone who has died. In Illinois, the affidavit is not filed with the court but can be presented to a person, bank, brokerage or other holder of an asset from the estate. If the affidavit is properly completed and the estate is eligible, the asset holder must then turn over the assets.
Using this summary administration process avoids formal probate, which can take months or years and require paying fees that significantly reduce the value of the estate. However, only some Illinois estates can go this route. Here are the state’s criteria for using the small estate affidavit:
- The estate can’t be valued at more than $100,000 in total.
- The person who died can’t have owned real estate, or the real estate must have been transferred to someone else on the owner’s death through joint tenancy or another method.
- A will, if one exists, was filed with the clerk of the court in the county where the person within 30 days of the person’s death.
- There aren’t any disagreements between heirs about the will.
- The estate can’t have already begun the probate process.
The person who uses the small estate affidavit must also agree to pay any outstanding financial claims against the estate, other than funeral expenses, before distributing assets to beneficiaries, including themselves.
Many states require a waiting period after the death before the small estate affidavit can be presented for payment. However, Illinois does not require a waiting period so the small estate affidavit can be used immediately.
Since the affidavit does not need to be filed with the court, there are no filing or court fees. The only cost is likely to be paying to have signatures notarized. However, a notary’s services typically cost $20 or less.
Illinois lays out the requirements of a small estate affidavit on its legislative website. Most people can draft and complete the affidavit without help from an attorney. Illinois Legal Aid has an online sample form along with instructions for filling it out. Local courts can also provide forms. Financial institutions sometimes have their own forms as well.
What Is Summary Administration?
Summary administration is an alternative to the often lengthy and expensive process of administering an estate through probate. It is the form of estate settlement that uses the small estate affidavit.
Speed and cost savings are the attractions of summary administration. Rather than taking months or years as probate can, summary administration can accomplish transfer of assets almost immediately after someone’s death.
What’s Included in a Small Estate Affidavit?
Illinois law says a small estate affidavit needs to state the following:
- The name and address of the affiant, which is the person swearing out the affidavit who hopes to collect the assets from the estate,
- The name of the decedent, which is the person who died,
- The date and location of the death,
- That the court hasn’t issued any letters of office giving the estate’s executor the power to give away assets from the estate,
- That the estate value does not exceed $100,000,
- A list of each asset in the estate, such as cash, bank accounts or stock, and each asset’s fair market value,
- That funeral expenses and other unpaid debts owed by the estate have been paid or, if not, a list of all debts and creditors’ names, addresses, and amounts owed,
- Names and addresses of surviving spouse and children,
- That there are no disputes or potential conflicts about the will or disposition of the estate,
- A description of the affiant’s relationship to the decedent,
- An agreement to pay any outstanding claims against the estate before distributing any money to heirs,
- A description of how assets remaining after claims are satisfied will be distributed, including the name of the beneficiary and the amount received.
The affidavit also needs to recognize the formula used in Illinois to decide how much a surviving spouse can get from the estate using this informal administration process. That amount is $20,000, plus $10,000 times the number of minor children and adult dependent children who resided with the surviving spouse at the time of the decedent’s death. If there is no surviving spouse, minor and adult dependent children can receive equal shares amounting to $20,000, plus $10,000 times the number of children.
The small estate affidavit also will need to have as attachments:
- A certified copy of the will, if one exists,
- Certified copy of the death certificate of the person who died
Pros of Small Estate Affidavit
Affidavits for collection of personal property offer notable benefits, including:
- It takes less time compared to formal probate.
- Costs are much lower than probate.
A small estate affidavit can be used when a person dies without a will.
Cons of Small Estate Affidavit
Some limits and drawbacks include:
- Estates must be smaller than $100,000.
- This process can’t be used if an estate includes real estate.
In Illinois, a small estate affidavit can save time and money when transferring assets from the estate of someone who died. The affidavits can only be used when the estate is valued at less than $100,000. An heir can gain control of assets such as bank accounts and stocks by presenting a properly completed small estate affidavit to a financial institution or other asset holder. Most people can complete one of these affidavits without an attorney and get rapid access to assets in a small estate.
Estate Planning Tips
- A financial advisor can help you with estate planning and other financial matters. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- An inheritance or other financial windfall can be a boost to your plans to buy a home, retire early or achieve other objectives. However, it takes careful planning and some discipline to make the most of a surprise infusion of wealth. Priorities typically should include reducing debt, building emergency savings and being thoughtful about investing the newfound wealth as well as, if you desire, sharing the good fortune through gifts and loans.
Photo credit: ©iStock/MangoStar_Studio, ©iStock/ebstock, ©iStock/AlexanderFord