Small Estate Affidavit

Small Estate Affidavit.  The Probate Act of 1975 contains a provision which governs the use of affidavits in small estates. Under the statute, an estate is considered small when all property passing to any party either by intestacy or under a will does not exceed $100,000. (735 ILCS 5/25-1(b)(6).  When a decedent’s estate assets, subject to probate, do not exceed $100,000, then an affidavit may be used to collect monies or personal property, obtain access to a safe deposit box, or deal with registrar’s or transfer agents. Assets subject to probate does not include assets which transfer automatically upon decedent’s death.  As such, jointly held assets with a right of survivorship are not included in calculating the $100,00 limit. Please be mindful that assets held as tenants in common do not have a survivorship component and are therefore included in calculating the size of the small estate. The holder of the affidavit may use it to gather assets or evidence of any interest or property right held by the decedent’s estate.  The statute contains a form of the affidavit at 735 ILCS 5/25-1(b). 

To utilize the small estate affidavit, the person utilizing the affidavit must be careful to fulfill the requirements of the statute. The small estate affidavit must contain a statement that the decedent’s funeral expenses have been paid or have been accounted for in the affidavit, there must be a statement that estate claims have been paid, and there cannot be disputes regarding the decedent’s will or heirs. If these statements cannot be truthfully made, then a petition to open an estate should be filed with the appropriate court.

One side note for automobiles. If the decedent’s representative wishes to use a small estate affidavit to transfer title to a motor vehicle, then it is suggested that the Secretary of State’s affidavit be used. That form can be found at https://www.cyberdriveillinois.com/publications/pdf_publications/rtopr31.pdf.

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