New Law Makes Small Estate Administration In Illinois Easier

The handling of small estates has always been problematic. The probate process is not quick, or easy or cheap. The probate process can particularly be a burden on small estates. For years, the State of Illinois has provided an alternative mechanism for handing small estates, but the limitations excluded many estates that might otherwise qualify, making it useless in many cases. Beginning January 1, 2015, a new law makes small estate administration in Illinois easier.

The probate process takes at least seven (7) to nine (9) months. It is a court process which requires the retention of an attorney. After the petition is filed in court and approved by the judge, notices must be mailed to all heirs, all legatees (people named in a Will) and to all known creditors. Notice must also be published in a newspaper once a week for three successive weeks. Then a six-month claims period must pass before the process of winding down the estate can begin.

The probate process is intended provide a comprehensive platform for handling the estate of a deceased person, including an opportunity for all heirs, people named in Wills and creditors to have their “day in court”. There are many requirements that must be followed, including the preparation of an inventory, an accounting and other paperwork that leaves a record of the entire estate. The process ensures that all issues are addressed and the property, ultimately, is transferred to the people who have a right to receive it without fear of competing claims, but that process is not practical for smaller estates.

The Illinois Probate Act has long provided an alternative for small estates that allows a person to handle the assets of a qualified estate using a “small estate affidavit”. The small estate threshold is fairly generous, $100,000 in personal property, but the use of a small estate affidavit is limited to estates in which there are no debts other than funeral expenses. Most people have debts and creditors that need to be paid when they die. For that reason, small estate affidavits have had limited utility. Until now….

The amendments allow use of the small estate affidavit even where there are debts, provided the debts are all listed out in the affidavit. The person who signs it becomes responsible for paying those debts. The person signing the affidavit not only must accept the responsibility to pay the debts, but also the responsibility to distribute the estate to rightful recipients. Both the debts as well as the ultimate recipients of the estate after all the debts are paid are to be listed in the affidavit.

Banks and other third parties who have possession of the decedent’s assets are allowed by this law to honor a small estate affidavit that is presented to them and to allow access to decedent’s assets, including any safety deposit box in the decedent’s name. The affidavit, itself, must follow the statutory provisions, and states that signor of the affidavit indemnifies and holds harmless anyone who relies on it from any losses based on that reliance. These provisions have long been part of the Act, but are made clearer in the amended provisions.

The affidavit allows the signor to pay all the debts of the decedent and to distribute the remaining assets to the lawful recipients without the delay, cost and burden of a probate proceeding. This is good news for many people who have lost a loved one who leaves behind a modest (“small”) estate.

Kevin G. Drendel