Small Estate Affidavit

The estate administration process can be complicated. However, there are some situations where an estate may be settled more quickly and efficiently through the use of a small estate affidavit.

• Are total personal assets under $100,000? If estate personal assets are $100,000 or less, then you can pass the asset on using a small estate affidavit. This affidavit cannot be used for real estate.
• If there is a will, file the will with the Circuit Clerk, obtain a certified copy of the will, and attach it to the small estate affidavit.
• If there is no will, then you will list each heir.

For example, consider a situation where the decedent owned a home and several bank accounts jointly with his spouse. The decedent alone also owned several shares of stocks totaling $95,000. The decedent's will provided that all his assets should be passed to his spouse. The surviving spouse will use a small estate affidavit to pass the stock to herself. If the decedent did not have a will, then the small estate affidavit would be utilized to pass the stock to his spouse and his children as his heirs at law.

In Illinois, the Probate Act, 755 ILCS 5/25, provides in relevant part:

Sec. 25-1. Payment or delivery of small estate of decedent upon affidavit. (a) When any person, corporation, or financial institution (1) indebted to or holding personal estate of a decedent, (2) controlling the right of access to decedent's safe deposit box or (3) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit in substantially the form hereinafter set forth, that person, corporation, or financial institution shall pay the indebtedness, grant access to the safe deposit box, deliver the personal estate or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in the affidavit or to an agent appointed as hereinafter set forth.

(d) Reliance and Release. Any person, corporation, or financial institution who acts in good faith reliance on a copy of a document purporting to be a small estate affidavit that is substantially in compliance with subsection (b) of this Section shall be fully protected and released upon payment, delivery, transfer, access or issuance pursuant to such a document to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate. Such person, corporation, or financial institution is not required to see to the application or disposition of the property; but each person to whom a payment, delivery, transfer, access or issuance is made or given is answerable therefor to any person having a prior right and is accountable to any representative of the estate.

Sec. 25-3. Recovery upon refusal to pay or deliver. If a person or corporation to whom an affidavit under Section 25-1 or Section 25-2 is delivered refuses to pay, deliver, transfer or issue the personal estate as provided by this Article, it may be recovered in a civil action by or on behalf of the person entitled to receive it upon proof of the facts required to be stated in the affidavit. For the purpose of the action the affidavit is prima facie proof of the facts stated therein.