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Illinois General Assembly· SB 2704Governor Approved

PROBATE-SMALL ESTATES, the official text

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SB2704 Enrolled                     LRB104 15718 JRC 28901 b

1   AN ACT concerning civil law.

2   Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4   Section 5. The Probate Act of 1975 is amended by changing

5 Section 25-1 as follows:

6   (755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1)

7   Sec. 25-1. Payment or delivery of small estate of decedent

8 upon affidavit.

9   (a) When any person, corporation, or financial institution

10 (1) indebted to or holding personal estate of a decedent, (2)

11 controlling the right of access to decedent's safe deposit box

12 or (3) acting as registrar or transfer agent of any evidence of

13 interest, indebtedness, property or right is furnished with a

14 small estate affidavit in substantially the form hereinafter

15 set forth, that person, corporation, or financial institution

16 shall pay the indebtedness, grant access to the safe deposit

17 box, deliver the personal estate or transfer or issue the

18 evidence of interest, indebtedness, property or right to

19 persons and in the manner specified in the affidavit or to an

20 agent appointed as hereinafter set forth.

21  (a-5) The small estate affidavit set forth in subsection

22 (b) may be used to transfer personal property in a decedent's

23 estate if:
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1   (1) no letters of office are outstanding on the

2   decedent's estate and no petition for letters is

3   contemplated or pending in this State or in any other

4   jurisdiction; and

5   (2) the decedent's personal estate passing to any

6   party by intestacy or under a will is limited to:

7   (A) excluding motor vehicles registered with the

8   Secretary of State, tangible and intangible personal

9   property not exceeding $150,000; and

10  (B) motor vehicles registered with the Secretary

11  of State.

12  For purposes of this Section, the following shall not be

13 considered an excluded motor vehicle in determining the value

14 of a decedent's personal estate: (i) motor vehicles used as

15 living quarters; (ii) motor homes, mini motor homes, and van

16 campers; (iii) a non-self-propelled vehicle, as defined under

17 Section 1-217 of the Illinois Vehicle Code; (iv) a commercial

18 vehicle; (v) an implement of husbandry; or (vi) a bus or

19 commuter van.

20  For purposes of this Section, if the small estate

21 affidavit as set forth in subsection (b) is being used solely

22 for a title transaction with the Secretary of State for the

23 transfer of the decedent's motor vehicles, it may be used to

24 transfer those motor vehicles in accordance with subsection

25 (b) of Section 3-114 of Illinois Vehicle Code without

26 consideration of the value of the decedent's personal estate.
    SB2704 Enrolled     -3-                  LRB104 15718 JRC 28901 b

1      (b)           Small Estate Affidavit

2      I,         (name of affiant) , on oath state:

3      1. (a) My post office address is:                  ;

4           (b) My residence address is:                  ; and

5           (c) I understand that, if I am an out-of-state

6 resident, I submit myself to the jurisdiction of Illinois

7 courts for all matters related to the preparation and use of

8 this affidavit. My agent for service of process in Illinois

9 is:

10                                NAME..........................

11                                ADDRESS.......................

12                                CITY..........................

13                                TELEPHONE (IF ANY)............

14 I understand that if no person is named above as my agent for

15 service or, if for any reason, service on the named person

16 cannot be effectuated, the clerk of the circuit court of

17 ......(County) (Judicial Circuit) Illinois is recognized by

18 Illinois law as my agent for service of process.

19     2. The decedent's name is             ;

20     3. The date of the decedent's death was            , and I

21 have attached a copy of the death certificate hereto.

22     4. The decedent's place of residence immediately before

23 his death was     ;

24     5. No letters of office are now outstanding on the

25 decedent's estate and no petition for letters is contemplated

26 or pending in Illinois or in any other jurisdiction, to my
    SB2704 Enrolled          -4-         LRB104 15718 JRC 28901 b

1 knowledge;

2   6. (a) Excluding motor vehicles registered with the

3 Secretary of State, the decedent's entire personal estate

4 passing to any party either by intestacy or under a will does

5 not exceed $150,000. (Here, list each asset, e.g., cash,

6 stock, and its fair market value.); and

7   (b) Any motor vehicles registered with the Secretary of

8 State in the decedent's entire personal estate passing to any

9 party either by intestacy or under a will. (Here, list a

10 description of each motor vehicle by make, body type, year,

11 and vehicle identification number.);

12  7. (a) All of the decedent's funeral expenses and other

13 debts have been paid, or

14  (b) All of the decedent's known unpaid debts are listed

15 and classified as follows (include the name, post office

16 address, and amount):

17  Class 1: funeral and burial expenses, which include

18  reasonable amounts paid for a burial space, crypt, or

19  niche; a marker on the burial space; and care of the burial

20  space, crypt, or niche; expenses of administration; and

21  statutory custodial claims as follows:

22  ........................................................

23  Class 2: the surviving spouse's award or child's award, if

24  applicable, as follows:

25  ........................................................

26  Class 3: debts due the United States, as follows:
    SB2704 Enrolled  -5-          LRB104 15718 JRC 28901 b

1   ........................................................

2   Class 4: money due employees of the decedent of not more

3   than $800 for each claimant for services rendered within 4

4   months prior to the decedent's death and expenses

5   attending the last illness, as follows:

6   ........................................................

7   Class 5: money and property received or held in trust by

8   the decedent which cannot be identified or traced, as

9   follows:

10  ........................................................

11  Class 6: debts due the State of Illinois and any county,

12  township, city, town, village, or school district located

13  within Illinois, as follows:

14  ........................................................

15  Class 7: all other claims, as follows:

16  ........................................................

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

18  7.5. I understand that all valid claims against the

19 decedent's estate described in paragraph 7 must be paid by me

20 from the decedent's estate before any distribution is made to

21 any heir or legatee. I further understand that the decedent's

22 estate should pay all claims in the order set forth above, and

23 if the decedent's estate is insufficient to pay the claims in

24 any one class, the claims in that class shall be paid pro rata.

25  8. There is no known unpaid claimant or contested claim

26 against the decedent, except as stated in paragraph 7.
    SB2704 Enrolled         -6-     LRB104 15718 JRC 28901 b

1   9. (a) The names and places of residence of any surviving

2 spouse, minor children and adult dependent* children of the

3 decedent are as follows:

4           Name and        Place of                  Age of

5           Relationship    Residence                 minor child

6 *(Note: An adult dependent child is one who is unable to

7 maintain himself and is likely to become a public charge.)

8   (b) The award allowable to the surviving spouse of a

9 decedent who was an Illinois resident is $.......... ($20,000,

10 plus $10,000 multiplied by the number of minor children and

11 adult dependent children who resided with the surviving spouse

12 at the time of the decedent's death. If any such child did not

13 reside with the surviving spouse at the time of the decedent's

14 death, so indicate).

15  (c) If there is no surviving spouse, the award allowable

16 to the minor children and adult dependent children of a

17 decedent who was an Illinois resident is $.......... ($20,000,

18 plus $10,000 multiplied by the number of minor children and

19 adult dependent children), to be divided among them in equal

20 shares.

21  10. (a) The decedent left no will. The names, places of

22 residence and relationships of the decedent's heirs, and the

23 portion of the estate to which each heir is entitled under the

24 law where decedent died intestate are as follows:

25  Name, relationship      Age of                    Portion of
    SB2704 Enrolled         -7-          LRB104 15718 JRC 28901 b

1   and place of residence  minor                        Estate

2                                OR

3   (b) The decedent left a will, which has been filed with the

4 clerk of an appropriate court. A certified copy of the will on

5 file is attached. To the best of my knowledge and belief the

6 will on file is the decedent's last will and was signed by the

7 decedent and the attesting witnesses as required by law and

8 would be admittable to probate. The names and places of

9 residence of the legatees and the portion of the estate, if

10 any, to which each legatee is entitled are as follows:

11  Name, relationship      Age of       Portion of

12  and place of residence  minor                        Estate

13  (Strike either 10(a) or 10(b)).

14  (c) Affiant is unaware of any dispute or potential

15 conflict as to the heirship or will of the decedent.

16  10.3. My relationship to the decedent or the decedent's

17 estate is as follows: ........................................

18  10.5. (The following paragraph should appear in bold type

19 and in not less than 14-point font):

20  I understand that the decedent's estate must be

21  distributed first to satisfy claims against the decedent's

22  estate as set forth in paragraph 7.5 of this affidavit

23  before any distribution is made to any heir or legatee. By

24  signing this affidavit, I agree to indemnify and hold

25  harmless all creditors of the decedent's estate, the
    SB2704 Enrolled         -8-  LRB104 15718 JRC 28901 b

1   decedent's heirs and legatees, and other persons,

2   corporations, or financial institutions relying upon this

3   affidavit who incur any loss because of reliance on this

4   affidavit, up to the amount lost because of any act or

5   omission by me. I further understand that any person,

6   corporation, or financial institution recovering under

7   this indemnification provision shall be entitled to

8   reasonable attorney's fees and the expenses of recovery.

9   11. After payment by me from the decedent's estate of all

10 debts and expenses listed in paragraph 7, any remaining

11 property described in paragraph 6 of this affidavit should be

12 distributed as follows:

13  Name             Specific sum or property to be distributed

14 The foregoing statement is made under the penalties of

15 perjury*.

16                               .........................

17                               Signature of Affiant

18 Signed and sworn before me on (insert date).

19                               .........................

20                                               Notary Public

21 *(Note: A fraudulent statement made under the penalties of

22 perjury is perjury, as defined in Section 32-2 of the Criminal
    SB2704 Enrolled  -9-  LRB104 15718 JRC 28901 b

1 Code of 2012.)

2   (c) Appointment of Agent. If safe deposit access is

3 involved or if sale of any personal property is desirable to

4 facilitate distribution pursuant to the small estate

5 affidavit, the affiant under the small estate affidavit may in

6 writing appoint one or more persons as the affiant's agent for

7 that purpose. The agent shall have power, without court

8 approval, to gain access to, sell, and distribute the property

9 in the manner specified in paragraphs 7.5 and 11 of the

10 affidavit; and the payment, delivery, transfer, access or

11 issuance shall be made or granted to or on the order of the

12 agent. The affiant may appoint himself or herself as the

13 designated representative to exercise the powers and perform

14 the duties of an agent described in this subsection (c).

15  (d) Reliance and Release. Any person, corporation, or

16 financial institution who acts in good faith reliance on a

17 copy of a document purporting to be a small estate affidavit

18 that is substantially in compliance with subsection (b) of

19 this Section shall be fully protected and released upon

20 payment, delivery, transfer, access or issuance pursuant to

21 such a document to the same extent as if the payment, delivery,

22 transfer, access or issuance had been made or granted to the

23 representative of the estate. Such person, corporation, or

24 financial institution is not required to see to the

25 application or disposition of the property; but each person to

26 whom a payment, delivery, transfer, access or issuance is made
    SB2704 Enrolled  - 10 - LRB104 15718 JRC 28901 b

1 or given is answerable therefor to any person having a prior

2 right and is accountable to any representative of the estate.

3   (e) Distributions pursuant to an affidavit substantially

4 in the form set forth in subsection (b) of this Section may be

5 made to the affiant, if so specified in paragraph 11,

6 notwithstanding the disclosure of known unpaid debts. The

7 affiant, acting on behalf of the decedent's estate, is

8 obligated to pay all valid claims against the decedent's

9 estate before any distribution is made to any heir or legatee.

10 The affiant signing the small estate affidavit prepared

11 pursuant to subsection (b) of this Section shall indemnify and

12 hold harmless all creditors, heirs, and legatees of the

13 decedent and other persons, corporations, or financial

14 institutions relying upon the affidavit who incur loss because

15 of such reliance. That indemnification shall only be up to the

16 amount lost because of the act or omission of the affiant. Any

17 person, corporation, or financial institution recovering under

18 this subsection (e) shall be entitled to reasonable attorney's

19 fees and the expenses of recovery.

20  (f) The affiant of a small estate affidavit who is a

21 non-resident of Illinois submits himself or herself to the

22 jurisdiction of Illinois courts for all matters related to the

23 preparation or use of the affidavit. The affidavit shall

24 provide the name, address, and phone number of a person whom

25 the affiant names as his agent for service of process. If no

26 such person is named or if, for any reason, service on the
    SB2704 Enrolled    - 11 - LRB104 15718 JRC 28901 b

1 named person cannot be effectuated, the clerk of the circuit

2 court of the county or judicial circuit of which the decedent

3 was a resident at the time of his death shall be the agent for

4 service of process.

5   (g) Any action properly taken under this Section, as

6 amended by Public Act 93-877, on or after August 6, 2004 (the

7 effective date of Public Act 93-877) is valid regardless of

8 the date of death of the decedent.

9   (h) The changes made by this amendatory Act of the 96th

10 General Assembly apply to a decedent whose date of death is on

11 or after the effective date of this amendatory Act of the 96th

12 General Assembly.

13  (i) The changes made by this amendatory Act of the 98th

14 General Assembly apply to a decedent whose date of death is on

15 or after the effective date of this amendatory Act of the 98th

16 General Assembly.

17  (j) The changes made by this amendatory Act of the 104th

18 General Assembly apply to a decedent whose date of death is on

19 or after the effective date of this amendatory Act of the 104th

20 General Assembly.

21 (Source: P.A. 104-346, eff. 8-15-25.)
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