Estate Planning, Probate & Elder Law Attorneys

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» 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).

» An Update on Small Estate Affidavits

I posted yesterday about an issue involving small estate affidavits.

This morning I learned that the Illinois Secretary of State's office has its OWN small estate affidavit form, which it prefers that you use if you are trying to change the title on an automobile. The form is available here as a pdf.

Thanks to attorney Caroline Zoes for this helpful tip!

» Jerry Orbach Potential Probate Fight

In the probate litigation system, there are two separate yet equally important parties: the second wife (who usually inherits the decedent's property), and the children of a prior marriage (who sue her). This is their story. [Clank! Clank!]

I should really apologize for that intro, but felt compelled to do it because my wife is a HUGE Jerry Orbach fan. He's up there with Richard Farnsworth (my wife either doesn't get crushes on young, good-looking actors, or she doesn't tell me about those crushes).

Anywho, Jerry Orbach's son is stirring things up via a letter he wrote to his step-mom, which "somehow" became public. The story is here. I don't think the son comes off looking too great here. From a PR perspective, it's hard to make the surviving spouse look evil because she assisted in organ donation. However, the horror movie fan in me does like the grisly imagery of a dead person having their eyes "shucked out" (I thought the verb "shucked" could only be used for oysters, but maybe it applies to the removal of any slimy thing from where it resides?).