We often hear about people who believe they don’t need to worry about estate planning because they have an estate that is on the smaller side. At the Law Offices of J. Jeltes, Ltd., we disagree. Not only does having an estate plan in place provide peace of mind, it can lift a tremendous burden for loved ones at the time of a death.

In addition, having a will does not prevent the estate from going to probate court, which can mean months or even years during which the distribution of an estate is left in limbo. But there is one workaround that can be quite helpful for the next-of-kin should someone with a smaller estate die intestate (without a will) or with a modest amount of assets to their name.

What Is an Illinois Small Estate Affidavit?

In Illinois, when an estate is valued at less than $100,000, probate court can be bypassed through the use of a Small Estate Affidavit. This remains true whether a last will and testament exists or not. As long as the estate has not yet gone into probate and the estate does not include any real estate property, an affidavit can serve to save a significant amount of time, money, and stress.

The other requirements are that letters of office have not been petitioned for or have been issued by the probate court, there are no known disputes regarding the legitimacy of the will (if it exists) or the decedent’s heirs, and there are no outstanding creditor issues. When those conditions are met, the executor of the will or another interested person may execute a sworn legal document to assert their claim to the assets of a decedent’s estate. 

Illinois law does not require that the affidavit be filed with court, but it does need to be notarized. It is recommended that 2 or more copies of the document are filled out and notarized, so it is wise to prepare them in their entirety, but hold off on signing them until a notary public can be present to witness it. A copy of the death certificate and a certified copy of the will (if one exists) will need to be attached to the signed and notarized affidavit.

As long as the affidavit is completed properly according to the law, the claim can be presented to a person, bank, corporation, brokerage, and any other institution that holds assets included in the estate. Asset holders are legally compelled to turn over the decedents’ assets to a person administering this affidavit. (A claim can be filed in civil court if the asset holder does not comply.)

By avoiding probate court in the case of an estate that is valued at less than $100,000, the process can be much more efficient and streamlined, sparing loved ones from an undue administrative burden.

Who Can Sign a Small Estate Affidavit?

According to Illinois law, a Small Estates Affidavit can be executed by one or more heirs, and it is worth noting that all heirs are not required to sign the document. The administrator of the affidavit must know that they will be responsible for paying any debts due to creditors and the decedent’s funeral expenses out of the estate’s assets, before distributing the remaining funds. 

Even when a Small Estate Affidavit is used to settle an estate outside of the probate process, the formula by which assets are distributed remains the same. After debts and funeral expenses are accounted for, a surviving spouse and/or children would receive the amount due to them, followed by any remaining assets being distributed to heirs as stated in the will or according to intestate succession guidelines.

Requirements of a Small Estate Affidavit

All of the following information must be included in order for a Small Estate Affidavit it to be valid:

  • The name, address, and phone number of the affiant (person completing the affidavit), along with their relationship to the decedent.
  • For non-resident affiants, the name and contact info of an Illinois resident who can serve as an agent for service of process in their absence.
  • The name and date of death of the decedent, along with their most recent residence address.
  • A description and valuation for each of the decedent’s assets, including the make, model, VIN, and license plate number for any vehicles.
  • An accounting of the funeral and burial expenses, other outstanding debts, and the amount due to a surviving spouse and/or dependents, if any 
  • The names and addresses of the surviving spouse, minor children, and/or adult dependents.
  • A calculation of the distribution of the decedent’s remaining estate among their heirs.

Illinois uses a formula to determine what amount a surviving spouse will receive from the estate ($20,000, plus $10,000 for each minor child and adult dependent living 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.  

Get Expert Advice

There can be so many unanswered questions when a loved one passes away. The stress of settling an estate without knowing all the answers or where to find them can make things more difficult than they need to be. 

Don’t go it alone. Talk to someone with the expertise to walk you through every step you need to take today, and to secure your future tomorrow.

It’s essential to partner with an experienced and compassionate advocate who can help you navigate the complexities of planning for the future and make sure your loved ones are provided for. 

If you want to know more about how to get started, reach out to schedule a one-on-one consultation with one of our expert attorneys.