What is the Small Estate Affidavit Law in Illinois?
Full Question:
Answer:
A small estate affidavit is used to collect property of a deceased person when the value of the estate is under a certain dollar amount. When presented with a properly completed affidavit, the party indebted to the deceased must pay the claim.
If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The amount is $100,000 in Illinois to collect property by affidavit. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a joint tenant dies without a will, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining joint tenants, or other person entitled to receive the interest under intestacy laws of the state.
An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws. Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.
Certain assets, such as trusts, transfer on death accounts, and joint assets with a right of survivorship aren't included as part of the probate estate and pass directly to the beneficiary on death. For example, a life insurance policy may name a beneficiary, and transfer on death, avoiding probate. A home owned as joint tenants with a right of survivorship will also pass directly to the surviving owner and is not part of the probate estate.
For further discussion, please see:
https://secure.ssa.gov/apps10/poms.nsf/lnx/0202315051
http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt%2E+XXV&ActID=2104&ChapAct=755%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=60&ChapterName=ESTATES&SectionID=63496&SeqStart=33600000&SeqEnd=34100000&ActName=Probate+Act+of+1975%2E