If my brother died without a Will, what steps do I need to be able to settle his estate?

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If my brother died without a Will, what steps do I need to be able to settle his estate?

He only had personal items and very little monetary assets. I have a disability check that he received before he passed and he was unable to cash it. He had no bank account. The sender said that the family is entitled to this check but must go before a judge to become executor of the estate in order to cash this check. He has a small amount of bills that need to be paid. Amount is not worth getting an attorney. How do I go about getting paperwork to fill out in order to file a claim with my county courthouse?

Asked on June 7, 2011 under Estate Planning, Illinois

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am so sorry for your loss.  Many states understand that thee are times that a person does with very little to have to probate and go through the full court system so they have enacted small estate laws that allow a person to deal with it without the necessity of hiring an attorney.  Under the Illinois state statute, where as estate is valued at less than $100,000, an interested party may issue a small estate affidavit to collect any debts owed to the decedent.  Here is the law and an example.  Good luck.

Illinois requirements are set forth in the statutes below.

CHAPTER 755. ESTATES ACT 5. PROBATE ACT OF 1975

ARTICLE XXV. SMALL ESTATES

Current through P.A. 89-443, approved 12/21/95 5/25-1. Payment or delivery of small estate of decedent upon affidavit

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

(a) When any person or corporation (1) indebted to or holding personal estate of a decedent, (2) controlling the right of access to decedent’s safe deposit box or (3) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit in substantially the form hereinafter set forth, that person or corporation shall pay the indebtedness, grant access to the safe deposit box, deliver the personal estate or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in paragraph 11 of the affidavit or to an agent appointed as hereinafter set forth.

(b) Small Estate Affidavit

1. I, (name of affiant) __________________________________________, on oath state:
(a) My post office address is: _________________________________________ ;
(b) My residence address is: __________; and
(c) I understand that, if I am an out-of-state resident, I submit myself to the jurisdiction of Illinois courts for all matters related to the preparation and use of this affidavit. My agent for service of process in Illinois is:
NAME……………………………………………………………
ADDRESS…………………………………………………………
CITY……………………………………………………………
TELEPHONE (IF ANY)……………………………………………….
I understand that if no person is named above as my agent for service or, if for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of __________ (County) (Judicial Circuit) Illinois is recognized by Illinois law as my agent for service of process.
2. The decedent’s name is __________;
3. The date of the decedent’s death was __________, and I have attached a copy of the death certificate hereto.
4. The decedent’s place of residence immediately before his death was __________;
5. No letters of office are now outstanding on the decedent’s estate and no petition for letters is contemplated or pending in Illinois or in any other jurisdiction, to my knowledge;
6. The gross value of the decedent’s entire personal estate, including the value of all property passing to any party either by intestacy or under a will, does not exceed $100,000. (Here, list each asset, e.g., cash, stock, and its fair market value.);
7. (a) All of the decedent’s funeral expenses have been paid, or (b) The amount of the decedent’s unpaid funeral expenses and the name and post office address of each person entitled thereto are as follows:
Name and post office address Amount
(Strike either 7(a) or 7(b)). 8. There is no known unpaid claimant or contested claim against the decedent, except as stated in paragraph 7.
9. (a) The names and places of residence of any surviving spouse, minor children and adult dependent* children of the decedent are as follows:
Name and Place of Age of Relationship Residence minor child
* (Note: An adult dependent child is one who is unable to maintain himself and is likely to become a public charge.) (b) The award allowable to the surviving spouse of a decedent who was an Illinois resident is $__________ ($10,000, plus $5,000 multiplied by the number of minor children and adult dependent children who resided with the surviving spouse at the time of the decedent’s death. If any such child did not reside with the surviving spouse at the time of the decedent’s death, so indicate). (c) If there is no surviving spouse, the award allowable to the minor children and adult dependent children of a decedent who was an Illinois resident is $__________ ($10,000, plus $5,000 multiplied by the number of minor children and adult dependent children), to be divided among them in equal shares.
10. (a) The decedent left no will. The names, places of residence and relationships of the decedent’s heirs, and the portion of the estate to which each heir is entitled under the law where decedent died intestate are as follows:
Name, relationship Age of Portion of and place of residence minor Estate
OR
(b) The decedent left a will, which has been filed with the clerk of an appropriate court. A certified copy of the will on file is attached. To the best of my knowledge and belief the will on file is the decedent’s last will and was signed by the decedent and the attesting witnesses as required by law and would be admittable to probate. The names and places of residence of the legatees and the portion of the estate, if any, to which each legatee is entitled are as follows:
Name, relationship Age of Portion of and place of residence minor Estate (Strike either 10(a) or 10(b)).
(c) Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent.
11. The property described in paragraph 6 of this affidavit should be distributed as follows:
Name Specific sum or property to be distributed
The foregoing statement is made under the penalties of perjury*.
……………………………………………………………….
Signature of Affiant

 


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