PROBATE-SMALL ESTATES

Illinois General Assembly - Full Text of SB2704

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Full Text of SB2704

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SB2704 - 104th General Assembly

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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:

SB2704 Enrolled
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LRB104 15718 JRC 28901 b
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
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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
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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
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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
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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
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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
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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
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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
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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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