Transferring Property and Using a Small Estate Affidavit

Transferring Property and Using a Small Estate Affidavit

Last updated: August 2012

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When a person dies, their property becomes the property of their "estate." An estate is all the property a person owns at their death. Estate property is usually passed on to beneficiaries through a legal proceeding in probate court. A "beneficiary" is the person who receives property or money from an estate. Depending on the size of the estate, the probate court process can take a lot of time and can be expensive. The probate court process can also take a lot of time if a will is contested. Click on words that look like 'this' to learn what these words mean.What happens if the person had a will? If the person died with a will, then the person is said to have died “testate.” The person who died is called the “decedent” and any property the decedent had at the time of death will be passed on according to instructions in the will. “Legatees” are the people named in the decedent’s will who will get property or money, although it is common now to simply call them beneficiaries.A decedent’s spouse has a right to a certain amount of the estate even if the spouse is not named in the will. This is true even if the spouses have been separated (called being “estranged”) for many years.The person who is named in the will to be put in charge of distributing the property in the will is known as the “executor.” It is important to name someone you trust as "executor."What happens if the person didn't have a will? If the person died without a will, then the decedent is said to have died “intestate.” Any property (including real property, personal property and money) will be given to the decedent’s “heirs” according to an Illinois law which is part of the Illinois Probate Code called the “Intestate Succession Law.” “Heirs” are the legal beneficiaries of a person who dies without a will.Under the Illinois Probate Act a decedent’s relatives inherit a percentage of the estate, based on their relationship to the decedent. For example, if there is a spouse and two children, the spouse gets half and the children get half, divided evenly. If there is no spouse, but three children, the children get everything divided in thirds.Do all estates have to be distributed through the probate court? No. In Illinois, estates that do not include real estate, do not have debts or claims, and are worth $100,000 or less do not have to go through probate court. These are called “small estates.” You can use a document called a “Small Estate Affidavit” to distribute the decedent’s property outside of the court without a court’s supervision.If you use a small estate affidavit, you are still bound by the terms of the will. If there is no will, then the rules found in the Illinois Probate Act must be followed. Can I use a small estate affidavit? If there is a will, only the person who is the executor of the estate can use the small estate affidavit. If there is not a will, generally, a beneficiary can use the small estate affidavit. The estate itself must also meet the following six conditions before you may use a small estate affidavit:The total amount of personal property in the estate must be worth $100,000 or less;The decedent did not own any real estate;A probate court has not issued any "letters of office." A letter of office is issued by the probate court to the executor of an estate and gives the executor the authority to distribute the estate;If there is a will, it must be filed with the clerk of the probate court within 30 days of the death;You are not aware of any disputes or conflicts relating to the will or to the heirs of the decedent; andThere are no outstanding unpaid claims or contested claims against the decedent (other than funeral expenses).Where can I get a small estate affidavit? Go to the "Forms/Letters" section to fill out a Small Estate Affidavit online. You can also pick up a copy of the form at your local court clerk's office. Do I need anything else? Yes. You will need:A copy of the death certificate (it is a good idea to have several copies of the death certificate), andA certified copy of the will (if there is one), which had been filed with the probate court in the county where the decedent died.Attach these documents to the affidavit.What if the person who died owned a car? A car can be transferred through a small estate affidavit, but there are some extra steps that you will have to take. The car's title must be transferred to the new owner by the Secretary of State's office. For more information, see the Secretary of State's website for information on Corrected Titles.How do I use a small estate affidavit? Once you get the affidavit, you can show the affidavit to any person, bank, or corporation that has estate property. The bank, person, or corporation must give the property the way the affidavit says. Once the property is transferred, the person who gave you the property cannot be sued. What if someone refuses to distribute property of the estate according to the affidavit? If a person or company with property from the estate will not follow the instructions in the affidavit, you can file a case in state court to make them give you the property.What are the risks of using a small estate affidavit? When you use a small estate affidavit, you become legally responsible to any creditors.This means that someone who should have received money or property from the decedent's estate can file a lawsuit against you. If they win in court, you could be held financially responsible for the amount that they lost as a result of the affidavit.This is true even if you do not keep any property and distribute all of the property to others. Therefore, it is very important that if you sign a small estate affidavit, you make sure that there are no claims being made against the estate. There should be no disputes as to who should rightfully be given the property.Make Sure You Can Use a Small Estate Affidavit Before you begin filling out the small estate affidavit, make sure you are eligible to use this form. You must meet six conditions to be able to use this form:The total amount of personal property in the estate must be worth $100,000 or less;The decedent did not own any real estate;A probate court has not issued any "letters of office." A letter of office is issued by the probate court to the executor of an estate and gives the executor the authority to distribute the estate;If there is a will, it must be filed with the clerk of the probate court within 30 days of the death;You are not aware of any disputes or conflicts relating to the will or to the heirs of the decedent; andThere are no outstanding unpaid claims or contested claims against the decedent (other than funeral expenses).If you meet all of these conditions, you may proceed and fill out the small estate affidavit. Fill Out the Small Estate Affidavit Click on the "Forms/Letters" section of this guide for the Small Estate Affidavit interview. Follow the instructions in the interview. Once you have completed the affidavit, print the form and make at least three copies. Also, make copies of the decedent’s death certificate to attach to each copy of the affidavit.Please note that if the estate includes a car, then in addition to filling out the Small Estate Affidavit online, you will also need to go to the Secretary of State's office to fill out paperwork to get the car.File the Small Estate Affidavit Take three copies of the small estate affidavit with the decedent's death certificate attached to each copy with you to file with the probate court. File the original with the probate court, keep one copy for your own records, and at least one copy for each person or corporation who has the decedent's property. Give a Copy of the Small Estate Affidavit to Any Holders of Property In order to use a Small Estate Affidavit, you must give a copy of the affidavit to any person or corporation who has the decedent's property. Once you give them a copy of the affidavit, they must release the property to your control.Be sure to attach a copy of the decedent's death certificate to every copy of the affidavit.If Necessary, File a Civil Claim to Enforce the Affidavit If the person or corporation that has the decedent's property refuses to turn over the property after you have given them a small estate affidavit, you can file a civil court claim to get the property.

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