When can an executor use the small estate option for a will?

 Posted on September 30, 2021 in Estate Planning / Probate

Most people have no experience with wills or the probate process. As a result, if you've been named the executor of a will, you're likely wondering what you have to do, what is the process like and whether there is any way to simplify things. There may be, but it depends on a few different factors.

What is the small estate option?

Illinois understands that going through probate can be a complex and time-consuming process. In light of this, a streamlined process was created for instances where the estate is small enough – to alleviate some of the burden on surviving family members. When an estate qualifies, an executor can file a small estate affidavit and avoid probate entirely.

What are the requirements for a small estate affidavit?

At the outset, the value of the deceased's assets must be less than $100,000. This is not always obvious at first glance – what may appear to be an asset could legally pass to another person or entity without ever going through probate. For instance, if the deceased owned property jointly with someone else, it may pass automatically to the other owner and not be considered an asset for the purpose of probate.

But if the deceased did own real property and it is considered an asset for probate purposes, the small estate affidavit cannot be used. Instead, the entire estate must pass through probate, even if the total value of the estate (including the real estate) is less than $100,000.

At the time of filing the affidavit, the estate must not have already entered probate. Once a probate case is opened, the opportunity to use the streamlined process has passed. Additionally, the decedent's heirs and beneficiaries must be in agreement with the will. The small estate process was not designed for wills that are contested. If anyone intends to challenge the will's provisions, the estate must go through probate.