How to Probate a Small Estate in Illinois

 

Small estates don't have to go through probate to be distributed. Find out what Illinois's limit is for this small estates procedure.

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Small Estate Limits for Illinois

You can use an Affidavit in Illinois for estates with less than $100,000, not counting liens or encumbrances (like a mortgage).

755 Ill. Comp. Stat. 5/25-1 and following.

You can use a summary probate procedure for estates in which the value of the probate estate is less than $100,000. All heirs and benefiaries must consent in writing. 

755 Ill. Comp. Stat. 5/9-8 and following.

What's Included in valuing the estate?

Not everything a person owns is part of their "Estate" for probate purposes.

If you're wrapping up the estate of a Illinois resident who died with an estate that's worth less than a certain dollar amount, you won't have to go through a formal probate court proceeding. 

It doesn't matter whether or not the deceased person left a will; what matters is the value of the assets left behind. If the estate's value is under the "small estates" limit in Illinois, you can take advantage of a simplified probate procedure, often called a "summary probate." Instead of having a court hearing in front of a judge, you may need only to file a simple form or two and wait for a certain amount of time before distributing the assets.

In some states, it can be even easier: Inheritors can use a simple affidavit to claim assets. (An affidavit is a statement you sign in front of a notary, swearing something is true.) If you live in one of those states, you just have to wait a required period of time, then sign a simple, sworn statement that no probate proceeding is happening in your state and that you are the person entitled to inherit a particular asset--a bank account, for example. 

Adding it up, what's in, what's not

When you are trying to determine whether or not an estate's value is below the Illinois small estates limit, the first thing to do is make a list of the assets. A simple spreadsheet or list will do.

Not everything a person owns counts, though.

Include only the things that pass to heirs and beneficiaries by will or, if there's no will, by Illinois intestacy laws, which determine who inherits if there is no will.

Don't count:

  • assets that are held in joint tenancy,
  • retirement plans,
  • payable-on-death (POD) bank accounts,
  • real estate transferred by a transfer-on-death deed, or
  • transfer-on-death brokerage accounts.

These assets don't count towards the small estate limit because they pass to the named beneficiaries regardless of what a will (or state intestacy law) says. If a person had a life insurance policy with a named beneficiary, the insurance proceeds won't count either.

Loans on the property?

Some states also don't count the amount of money owed on a car, or a house, while others count the fair market value of an asset, even it is subject to a loan or a mortgage.

For example, say Donald died in Illinois and owned the following assets:

  • A checking account with $2,345
  • A savings account with $2,567
  • A car with a blue book value of $6,500 (and no loan)
  • An IRA with $32,000, naming his son and daughter as beneficiaries
  • A life insurance policy worth $15,000, naming his son and daughter as beneficiaries

To figure out whether Donald is above or below Illinois's small estate limit, only the bank accounts and car would be counted, for a total of $11,412.

His IRA and the life insurance proceeds aren't counted towards the limit because they will go to his beneficiaries directly. The value of the car is included because he doesn't owe money on it.

That means the value of Donald's estate is under the Illinois small estates limit. His son and daughter, who inherit his assets under Illinois's intestacy laws because Donald had no will, would follow the small estates procedure.

Options for Small Estates in Illinois

Illinois offers two options for expedited or simplified probate procedures. These are known as "Small Estate Affidavit" and "Independent Administration".

  1. Small Estate Affidavit

    For estates valued at $100,000 or less, Illinois law provides a "small estate" affidavit procedure. Here's a simplified step-by-step breakdown:

    1. Wait at least 30 days after the death of the estate owner.
    2. Fill out a small estate affidavit, detailing the property, the value of the property, the names of the heirs and their relationship to the deceased, and other details.
    3. Sign the affidavit in front of a notary.
    4. Present the affidavit to the person or institution that has the property now.

    This process bypasses the need for a full probate procedure, which can involve multiple court hearings, appointment of a personal representative, and extensive paperwork. This procedure is outlined in 755 ILCS 5/25-1.

  2. Independent Administration

    Independent administration allows the executor or administrator to administer most aspects of the estate without court approval. This is a more streamlined and faster process than supervised administration. Here's a step-by-step guide:

    1. The executor named in the will or the court-appointed administrator files a petition for independent administration with the probate court.
    2. Unless an interested party objects, the court grants the petition, and the estate can be settled without court supervision.
    3. The independent executor or administrator then gathers the deceased person's assets, pays their debts and taxes, and distributes what's left to the people who inherit it.

    The independent administration process eliminates a lot of the paperwork and court hearings required in supervised administration. This is governed by the Probate Act of 1975, 755 ILCS 5/28-1.





Jurisdictional relevance: ST

There are versions of this article for each State.