The Dangers of Using a Small Estate Affidavit in Illinois

If you’ve had a loved one pass away and the duty has fallen to you to collect assets and pay outstanding bills, you’ve no doubt heard of a small estate affidavit. Perhaps you went to the bank to access your parent’s bank account to pay funeral expenses, only to be met by a teller who states that in order to access the money, you will need letters of office or a small estate affidavit. Some banks may even hand you a small estate affidavit on the spot. But be careful, filling out a small estate affidavit is dangerous and should only be done with advice from an attorney, such as the probate attorneys at Johnston Tomei Lenczycki and Goldberg LLC.

What is a Small Estate Affidavit?

A small estate affidavit is used in lieu of probate when the aggregate amount of the deceased person’s assets passing outside of a Trust, beneficiary designation, or joint account, is under $100,000. The person filling out the affidavit is the “affiant” and the affiant affirms that this is true. The affiant must further list all known heirs and legatees, and any outstanding debts. As you realize, this will take quite a bit of knowledge to properly complete and it is easy to get it wrong if you haven’t dug deep enough in a person’s financial life. It also requires having access to the person’s Will, if any.

What to Look Out For

The first and most obvious problem is that if you are completing a small estate affidavit, it needs to be complete and accurate. You will have to make a good faith effort to make sure you have full knowledge of a person’s finances and family relationships. Some people may simply guess on the affidavit, and some people may knowingly lie for ease. Needless to say, if you knowingly make false statements on the small estate affidavit you will be committing the crime of perjury.

A bigger problem, unknown to many, is that if you are filling out and signing a small estate affidavit, and then you use it to have funds released at a financial institution, you are making yourself liable for the full amount of the money at the institution, even if you do not receive it. It is a common scenario where a Will leaves money to multiple children. You will have to list them in the small estate affidavit, and the bank will send the money directly to those siblings of yours. So while you signed the affidavit, you only received a portion of the money. If a creditor comes knocking looking for money, you are liable to pay back the full amount, even though you only received a portion of it.

When to Use a Small Estate Affidavit

A small estate affidavit is fine when the person’s probate assets are under $100,000, and had little to no debt, and ideally the only heir is a spouse or one child. Things get riskier when you start adding more people into the mix.

Alternative to Small Estate Affidavit

The alternative to using a small estate affidavit is to file a petition for probate in the local county Court. While probate is made to seem like a terrible process, it is often streamlined and can be performed efficiently and effectively by probate attorneys such as the attorneys at Johnston, Tomei, Lenczycki, and Goldberg, LLC. The Court will issue you letters of office, also sometimes known as letters testamentary, which will give you the authority to access funds and pay creditors. This has the added benefit of cutting off any creditors from ever seeking to collect after 6 months from the date of filing for probate.

Call the Lake County Probate Attorneys at Johnston Tomei Lenczycki and Goldberg LLC Today

In order to determine whether you should use a small estate affidavit or file a petition for probate you should speak with an experienced probate attorney at Johnston Tomei Lencyzcki and Goldberg LLC today at (847) 596-7494. We will lay out the pros and cons to each and determine whether you are eligible to create a small estate affidavit. We will also strive to ensure the accuracy of your affidavit and make sure that you are fully aware of the liability it brings. Call Johnston Tomei Lenczycki and Goldberg LLC today at (847) 596-7494 to discuss your probate matter.



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Johnston Tomei Lenczycki & Goldberg LLC

Phone Number: (847) 549-0600
Fax Number: (847) 589-2263

Libertyville Office
350 N. Milwaukee Ave., Ste. 202
Libertyville, IL 60048

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Wheaton, IL 60187