Do small estates avoid probate?

On Behalf of | Aug 9, 2019 | Probate Estate Administration | 0 comments

To make the process of passing an estate to an heir easier, some Illinois residents opt to keep their estates as small as possible. This is because state law allows for small estates to be more quickly passed on to an heir than most other estates when they go through probate. However, Rockford residents can only benefit from this provision in the law if certain conditions are met.

Illinois law allows for heirs to process a small estate through a small estate affidavit. If the estate assets are valued below $100,000, an heir can fill out and sign an affidavit to receive all eligible assets, since creditors may still have claims to portions of the estate. It is up to the person signing the affidavit to list all of the estate assets, like stocks or cash, along with their fair market value. Once creditor claims are settled, the heir can expect to receive the remainder of the estate.

Signing a small estate affidavit does not fully deter risks of litigation. A person who enters false information on the affidavit runs the risk of being charged with perjury. And if there is a dispute over who is the rightful heir to the estate, the matter will likely be thrown into court. Also, a small estate affidavit will not be valid if letters of office are opened on the estate, or if a letter of office is pending or likely to be sent out.

Additionally, anyone contemplating using a small estate affidavit should examine the last will and testament of the decedent in the event a will was indeed left. Heirs can sign a small estate affidavit regardless of whether the decedent left a will or not, but if there was a will and it is unclear in its provisions, another party may challenge the will. The will might also be litigated if it does not seem authentic.

Basically, a small estate affidavit can be helpful, but it is no guarantee of avoiding a probate proceeding, and in some circumstances, a small estate affidavit cannot transfer ownership of assets, like real estate. Careful consultation with an estate attorney can help estate heirs learn their options under Illinois law. Because estate matters vary by individual, do not read this article as legal advice for your situation; it is only intended for educational value.