Most states have enacted laws for the expedited probate administration of small estates in order to enable heirs to obtain property of the deceased provided certain requirements are met. As a result, small estates may be summarily administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available.

If certain requirements are met, the personal property of a deceased may be transferred to the successors (such as beneficiaries of the deceased’s will, intestate heirs, guardians, conservators, trustees, and attorneys in fact) of the deceased without the need to open a probate with the probate court. In order to do so, the entire estate of the deceased must qualify as a small estate and a document known as an affidavit must be filed to initiate the process. The successors of the deceased may make their claims to the property and take title if there are no conflicting claims. Title to real property may not be transferred.

Small Estate Affidavit. When any person or corporation indebted to or holding personal estate of a decedent, controlling the right of access to decedent's safe deposit box or is acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit, that person or corporation 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 or to an agent appointed.

A small estate affidavit may be filed if the gross value of the decedent's entire personal estate, including the value of all property passing to any party either by intestacy or under a will, does not exceed $100,000.

The small estate affidavit must meet the following requirements:

• All of the decedent's funeral expenses have been paid, or the amount of the decedent's unpaid funeral expenses and the name and post office address of each person entitled are listed in the affidavit;
• There is no known unpaid claimant or contested claim against the decedent, except as stated;
• The names and places of residence of any surviving spouse, minor children and adult dependent* children (an individual who is unable to maintain himself and is likely to become a public charge) of the decedent are as stated. The award allowable to the surviving spouse of a decedent who was an Illinois resident is currently $10,000, plus $5,000 multiplied by the number of minor children and adult dependent children who resided with the surviving spouse at the time of the decedent's death;
• The decedent left no will and the the names, places of residence and relationships of the decedent's heirs, and the portion of the estate to which each heir is entitled under the law where decedent died intestate are described in the affidavit or, if the decedent left a will, it is filed with the clerk of court, and the names and places of residence of the legatees and the portion of the estate, if any, to which each legatee is entitled are as stated in the affidavit; and
• Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent.

Petition for Summary Administration. A petition for summary administration may be filed in county court.

To be granted, the petition must meet the following requirements:

• The gross value of the real and personal estate does not exceed $100,000;
• There is no claim or all claimants are enumerated in the petition;
• No death taxes will be due to the state or the federal government;
• There are no individuals entitled to a surviving spouse award or child award, or such persons that are entitled are named in the petition with the amount of such entitlement;
• All heirs (if there is no will) or legatees (beneficiaries if there is a will) consent in writing to the summary administration;
• Each person claiming an estate distribution (known as a distributee) gives a bond the value of the distribution conditioned that the amount distributed to such distributee may need to be refunded in the event of a superior (prior) claimant;
• Petitioner has published a public notice of the death of the deceased and the filing of the petition in a newspaper.

Spiegel & Utrera, P.A. stands ready to help you during the administration of your loved one’s estate.

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