Estate Planning, Probate & Elder Law Attorneys

» Small Estate Affidavits and Claims

In Illinois, you can avoid a probate if the decedent owned less than $100,000 in probate assets (that is, assets in his or her own name), and owned no Illinois real estate, at the time of death.

You can do so by presenting a small estate affidavit to the people or entities holding the decedent's assets: banks, insurance companies, IRA custodians, etc. The affidavit sets forth the facts -- that the decedent died (attaching a death certificate), that the decedent had or didn't have a Will (attaching a copy of the Will, if the decedent had one), etc. You also list the decedent's probate assets, and tell who should receive them in what percentages. The people or entities holding the decedent's assets should then distribute them as provided in the affidavit, thereby avoiding probate.

There's a small estate affidavit form in the Illinois Probate Act, but the form has a problem. Here's the relevant part:

7. (a) All of the decedent's funeral expenses have been paid, or (b) The amount of the decedent's unpaid funeral expenses and the name and post office address of each person entitled thereto are as follows:

Name and post office address Amount

(Strike either 7(a) or 7(b)).

8. There is no known unpaid claimant or contested claim against the decedent, except as stated in paragraph 7.

The issue is, what do you do in the typical small estate situation, where there are some assets and also some bills? Do those bills rise to the level of "known unpaid claimant" or "contested claim"? Can you in good faith sign this document under penalties of perjury, including paragraph 8, if you know of a potential claim? Local attorney Cary Lind has a nice discussion here (note that this is an old article -- hence the reference to a $50,000 amount rather than $100,000).

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» 5 Things You Can Do To Save Money and Time on Probate

Probate has a reputation of being expensive and time-consuming. I would say that that reputation is unfair in some cases, but you still have to be careful about how the probate is handled. And there are certainly some general and specific things that you can do to save money in probate. Many of these things involve saving your attorney from having to perform some duty that you can do yourself. Here's my list:

1. Obtain waivers of notice from all heirs and legatees (beneficiaries under the Will). This can save 1/2 hour to an hour of attorney time. If waivers aren't obtained, the attorney needs to send notice to each heir and legatee of the fact that the estate has been opened. Obviously, waivers only work if the heirs and legatees are willing to sign the waivers -- in an estate with a lot of heirs and legatees, or an estate where people don't get along, waivers probably can't be obtained.

2. Prepare a list of heirs and legatees yourself (with their addresses), instead of having your attorney do it. This can save hours of work.

3. Have a "proper" Will. There's not much you can do on this front once the decedent is dead, but things go much more smoothly if the Will was drafted correctly. And that typically means "He/she got it off the internet" won't work. Most internet/software Wills that I see forget to do the simple things, like waive the requirement that the executor post a surety bond. If this isn't done, you need to purchase such a bond, which can cost from $100 to many thousands of dollars per year.

4. Present the attorney with a list of the decedent's assets, including potential values, account numbers, and how the assets were owned. Again, this saves the attorney from having to spend the time to track down this information.

5. Be careful about attorneys and other professionals. Interview more than one attorney, and make sure that you understand the extent of your attorney's experience in the area of probate, as well as how fees will be structured. Some attorneys charge hourly (that's what I do); some seem to charge a flat fee. Find this out beforehand. Other things to inquire about:

a. How work will be handled. Are there specific non-legal things you can do in order to speed the process along or save money?

b. Who will be handling the matter. Will it be the attorney? An associate? A secretary? A legal assistant? You need to know, and you also need to know whether the person is going to be responsive. If you as a potential client leave a message for an attorney, how long before the attorney calls you back?

c. Does the attorney have good working relationships with accountants and financial folks, who can sometimes handle estate issues for less money, or does the attorney expect to do all of this work himself or herself (and charge for every minute)?

None of the above should suggest that you can do all, or even most, of the probate by yourself. A good attorney will save you lots of money in the long run just by doing things the right way. I would also suggest that clients not be penny wise and pound foolish. By this, I mean that the attorney should spend some time and money at the beginning of the probate, learning about the decedent's situation and communicating with the executor and the heirs and legatees, and should charge accordingly. This is a good thing, in the long run -- the more time spent upfront, the greater the chance to avoid problems later in the probate.