Probate for Small IL Estates

In Illinois, small estates can completely bypass probate via small estate affidavit, or simplify it via summary administration.

Small Estate Definition

In Illinois, an estate qualifies as "small" if its qualified gross value is <$100,000.

In calculating estate value, you should value assets as of the date of death, and ignore any debts. Do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Small Estate Affidavit

The simplest approach for a small estate is to bypass the court entirely and use a small estate affidavit to collect property.

Requirements

You can use the small estate affidavit process if:

The estate qualifies as "small" as per above
The estate contains no real property (i.e., real estate)
No one has been appointed executor for the estate, and there are no known plans for such an appointment
There is no known conflict or potential dispute among the potential heirs
The will, if one has exists, has been filed with the court (see below)

Process

To use the small estate affidavit process:

Prepare a small estate affidavit form (see below)
Provide a copy of the affidavit to any custodian of estate assets to gain custody of the assets
Settle the estate in the normal manner (pay all debts, distribute assets)

Affidavit Form

The small estate affidavit form requires the following information:

Name and address of decedent
Names and addresses of immediate family
Names and addresses of anyone who should inherit
List of all estate assets (including value)
List of all contemplated immediate family awards (see below)
List of all debts (including taxes owed)
List of planned distributions

The affidavit must be notarized, and you will need to attach:

A certified copy of the death certificate
A certified copy of the will (if there is one)

See 755 ILCS 5/25 statute.

Summary Administration

If the small estate contains real property (i.e., real estate), then your only choice to avoid full probate is to request a Summary Probate Administration.

Requirements

You can use the summary administration process if:

The estate qualifies as "small" as per above.
The estate has paid or will pay all state and federal taxes owed
All people named in the will to inherit, and all heirs-at-law (people who would inherit if there were no will) have consented in writing to a summary administration
Each person who will receive a distribution provides a bond promising to repay that distribution if a valid debt claim arises (see Debts below)

Process

To use the summary administration process:

Submit a Petition for Summary Administration, or a Petition for Summary Intestate Administration if there is no will, to the court (note that the linked forms are from Cook County: check your local court).
Publish an announcement that includes notice of the death, notice of the summary administration petition, and notice of the hearing to approve the summary administration. Publish the announcement once a week for 3 successive weeks in a newspaper published in the county, beginning at least 30 days before the scheduled hearing.
Notify the court that the required announcements have been made
Receive a court order authorizing the summary administration
Provide a copy of the court order to any custodian of estate assets to gain custody of the assets.
Settle the estate in the normal manner (pay all debts, distribute assets)

See 755 ILCS 5/9-8 statute.

Estate Settlement Considerations

Before paying any debts or making any distributions, be sure to account for any IL Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

Court

In Illinois, the local Circuit Court handles wills and estate probate. Note that if everything goes smoothly with the small estate affidavit process, no court will ever be involved, other than originally filing the will.