In this episode of the Learn About Law podcast & videoblog, Kevin O'Flaherty of O'Flaherty Law discusses when probate is necessary in order to administer the estate of a deceased individual. Probate is typically necessary in Illinois when the decedent owns any real estate or more than $100,000.00 of non-real-estate assets outside of a trust. If probate is necessary, then the executor of the estate must receive Letters of Office from the probate court in order to collect the assets of the estate for the payment of creditors and heirs or legatees. If probate is not necessary, then the executor or trustee can administer the estate immediately with the use of a small estate affidavit.
In this article...

In this article, we will discuss when it is necessary in Illinois to open a probate matter to administer the estate of a decedent and when doing so can be avoided.

Key Takeaways

In this article, we will discuss when it is necessary in Illinois to open a probate matter to administer a decedent's estate and when doing so can be avoided.

Before diving into whether a probate matter is necessary, let's take a minute to understand what "probate" means. Probate is a legal process through the courts which accomplishes the administration of a deceased individual's ("decedent") estate. A common misconception about the probate process is that it is only required where the decedent had a will at the time of death. On the contrary, whether or not a probate matter is necessary depends on the type(s) of assets the decedent left behind and how those assets are titled. Probate is required if the following two factors are present in the decedent's estate:

The decedent owned assets in their name only (jointly held property is not subject to probate), and the total value of assets in the decedent's estate is more significant than $100,000, or The decedent-owned real estate outside of a trust that was not owned jointly with right of survivorship.

Based on this reading, if you believe you need to open a probate matter, read more information in our article Probate Matters Explained.

What types of property are not part of a probate estate in Illinois?

Some examples of property not subject to probate include:

  • Assets in a trust
  • Assets with a designated beneficiary (retirement accounts)

These assets pass directly to the beneficiaries without being included in the probate estate.

Illinois Small Estate Affidavits Explained

If probate is not required based on the test listed above, your trustee, executor, or administrator can administer your estate outside of probate using a small estate affidavit. The small estate affidavit must be in either the form provided for in the Illinois statute (755 ILCS 5/25-1) or substantially similar to that form to be acceptable.

The affidavit will include essential information including, among other things, the following:

  • the decedent's name;
  • the date of death;
  • the decedent's last residential address;
  • an explanation of the decedent's assets and debts, if any;
  • and an explanation of how said assets are to be distributed.

A hiccup can occur with using a small estate affidavit in situations where the affiant (the person creating and using the small estate affidavit) is not acting honestly. The small estate affidavit does not need to be filed with the court or be approved by someone acting on behalf of the decedent, and, therefore, any person can create one to transfer any other person's assets. While it is unrealistic to expect this to happen often, the legislature did take precautions in antiquation of just that scenario.

The statute, found in the Illinois Probate Act of 1975, requires any entity holding assets of the decedent and is served a small estate affidavit to transfer the assets in compliance with what is purported in the affidavit. Acknowledging the potential for issues wherein any person could create a small estate affidavit as a back-door method to have another person's assets transferred, the legislature expressly protects any entity which acts in good faith with reliance on a purported small estate affidavit. In the same series of events, if the affiant is found to have acted in bad faith and made false statements or representations on the small estate affidavit, they may be liable for perjury and to civil lawsuits from those individuals negatively affected by their actions.

In our firm's experience, many individuals are unfamiliar with the probate process and, due to what they've heard from others, believe it's a very burdensome process. While it does take some time (generally about a year from opening to closing), our team of experienced attorneys can help. If you need more information about a probate matter, don't hesitate to get in touch with our office at (630) 324-6666.

November 16, 2020
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