When a person dies, the things they own become part of their estate. The things they own are their assets. Their assets include money, property, and anything else they own.
The person who dies is the decedent. The people who receive the assets are beneficiaries.
The court process where this all happens is called probate. The probate process can take a lot of time, and cost a lot of money.
Using a small estate affidavit is faster and costs less money than going through the probate court.
Who can use a small estate affidavit?
A small estate affidavit can be used whether or not the decedent had a will. But it can’t be used if the estate goes to probate court.
If there is a will, the person who is named the executor of the estate can use the small estate affidavit. An executor is the person in charge of giving out the property left in a will. A beneficiary can also use the small estate affidavit if there is not a will.
To use a small estate affidavit, all of the following must be true:
- The total amount of personal property in the estate is worth $100,000 or less;
- The person who died did not own any real estate;
- A court has not given out any letters of office. Letters of office are given out by the probate court to the executor of an estate, giving them the power to give away property in the estate;
- If there is a will, it was filed with the clerk of the court in the county where the person lived within 30 days of the death;
- You are not aware of any fights relating to the will or to the heirs of the decedent; and
- If there are outstanding unpaid claims against the decedent other than funeral expenses, they are listed on the small estate affidavit, and the person who signs it promises to make sure they are paid.
If a person doesn't follow a small estate affidavit
Banks and other property holders must accept any properly completed small estate affidavit. Banks must distribute estate property as instructed in the affidavit. If a bank refuses to honor an affidavit, you have several options.
First, you can show that your small estate affidavit complies with the law. You should attach to your affidavit a copy of the Illinois statutes (755 ILCS 5/25-1) that authorize the small estate affidavit method. This law protects banks from liability for good faith distributions.
The bank may ask you to leave a copy of your affidavit to check that it meets all legal requirements. If some time passes and the bank still does not honor it, you should ask to speak with someone in the bank’s legal department. You should request an explanation for the bank’s delay or refusal from that person.
If the bank does not cooperate, you can file a lawsuit in state court to make the bank give you the property. The bank may also be liable for your attorney’s fees if the judge finds there was no just reason to deny you the property.