Detailed Answer
In Illinois, a “heirship affidavit” is commonly prepared under the Small Estate Affidavit statute (755 ILCS 5/28-4) to collect a decedent’s personal property without formal probate. This process applies when:
- The decedent died intestate (without a valid will), or the appointed executor is unable or unwilling to serve.
- The total value of the decedent’s personal property (excluding amounts exempt by law, such as certain family allowances) does not exceed $100,000.
- No prior small estate affidavit exists for that estate in Illinois.
Follow these steps to prepare and use the affidavit:
- Verify Qualification: Calculate the value of all personal property (bank accounts, vehicles, household goods). Ensure the total does not exceed $100,000. (See 755 ILCS 5/28-4(e): ilga.gov.)
- Identify Heirs: Gather certified copies of the decedent’s death certificate, marriage license, birth certificates, and any documents proving heir relationships (e.g., children, spouse, parents, siblings).
- Draft the Affidavit: Include:
- Decedent’s full name, date of death, and last residence.
- Statement that no will is admitted to probate and no executor is acting.
- Itemized list of personal property and its estimated value.
- Names, addresses, and relationship of each heir entitled to property.
- An oath clause stating the affidavit is true under penalty of perjury.
- Swear and Notarize: All heirs (or the person collecting property) must sign before a notary. Keep original affidavits for recording or presentation.
- Present to Holders: Provide the affidavit and death certificate to banks, financial institutions, or other holders of the decedent’s assets. They may release funds or transfer titles based on the affidavit.
- Record If Needed: If transferring a vehicle title, file the affidavit with the Secretary of State, Department of Motor Vehicles, following their small-estate procedure. For real estate, Illinois law generally requires probate or a court order; a small estate affidavit does not transfer real property.
When You Cannot Use a Small Estate Affidavit
- Estate value exceeds $100,000 in personal property.
- Real estate is titled in the decedent’s name alone.
- A will names an executor actively serving.
- Creditors have substantial claims requiring formal administration.
For estates exceeding these limits, you must open a full probate case in the circuit court. Review the Illinois Probate Act (755 ILCS 5) or consult an attorney.
Helpful Hints
- Start with a certified death certificate—most institutions require it.
- Work with a title company when transferring vehicles to ensure compliance.
- Keep all originals and make certified copies for each asset holder.
- Check county clerk fees; recording or filing fees vary by county.
- Use clear, legible language in the affidavit to avoid delays.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. For guidance on your specific situation, consult a licensed attorney in Illinois.