Settling Small Estates (IL)
In Illinois, small estates can completely bypass probate via small estate affidavit, or simplify it via summary administration. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
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 right 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)
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)
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in IL, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in IL, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow IL probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
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.
See also Making Distributions.
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.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in IL.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in IL.
Finally, in case you're interested, details about handling small estates in other states can be found here: