96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3693

 

Introduced 2/24/2009, by Rep. Patricia R. Bellock

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 5/25-1   from Ch. 110 1/2, par. 25-1
755 ILCS 5/25-5 new

    Amends the Probate Act of 1975. Provides that the small estate affidavit form must include a statement that Illinois law provides that persons are entitled to preference in the following order to prepare a small estate affidavit: surviving spouse; children; grandchildren; parents; brothers and sisters; nearest kindred; and the public administrator. Provides that the affiant must state which of these apply: no heir of the decedent has a superior preference to prepare the small estate affidavit; the heir with an identical or superior preference to prepare the affidavit has declined or refused to do so; or there is a reason that the affiant has prepared the affidavit rather than the person with an equal or superior preference. Requires that the affidavit include a notice stating that if several persons are claiming the right to prepare a small estate affidavit, a court may determine which one shall be entitled to do so. Provides that a person completing a small estate affidavit shall comply with these requirements included in the affidavit form.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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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 and by adding Section 25-5 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 or corporation (1) indebted to or
10 holding personal estate of a decedent, (2) controlling the
11 right of access to decedent's safe deposit box or (3) acting as
12 registrar or transfer agent of any evidence of interest,
13 indebtedness, property or right is furnished with a small
14 estate affidavit in substantially the form hereinafter set
15 forth, that person or corporation shall pay the indebtedness,
16 grant access to the safe deposit box, deliver the personal
17 estate or transfer or issue the evidence of interest,
18 indebtedness, property or right to persons and in the manner
19 specified in paragraph 11 of the affidavit or to an agent
20 appointed as hereinafter set forth.
21     (b)        Small Estate Affidavit
22     I,        (name of affiant)    , on oath state:
23     1.  (a) My post office address is:                     ;

 

 

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1         (b) My residence address is:                   ; and
2         (c) I understand that, if I am an out-of-state
3 resident, I submit myself to the jurisdiction of Illinois
4 courts for all matters related to the preparation and use of
5 this affidavit. My agent for service of process in Illinois is:
6
NAME..........................
7
ADDRESS.......................
8
CITY..........................
9
TELEPHONE (IF ANY)............
10 I understand that if no person is named above as my agent for
11 service or, if for any reason, service on the named person
12 cannot be effectuated, the clerk of the circuit court of
13 ......(County) (Judicial Circuit) Illinois is recognized by
14 Illinois law as my agent for service of process.
15     2. The decedent's name is            ;
16     3. The date of the decedent's death was            , and I
17 have attached a copy of the death certificate hereto.
18     4. The decedent's place of residence immediately before his
19 death was            ;
20     5. No letters of office are now outstanding on the
21 decedent's estate and no petition for letters is contemplated
22 or pending in Illinois or in any other jurisdiction, to my
23 knowledge;
24     6. The gross value of the decedent's entire personal
25 estate, including the value of all property passing to any
26 party either by intestacy or under a will, does not exceed

 

 

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1 $100,000. (Here, list each asset, e.g., cash, stock, and its
2 fair market value.);
3    7. (a) All of the decedent's funeral expenses have been
4paid, or (b) The amount of the decedent's unpaid funeral
5expenses and the name and post office address of each person
6entitled thereto are as follows:
7Name and post office addressAmount
8(Strike either 7(a) or 7(b)).
9    8. There is no known unpaid claimant or contested claim
10against the decedent, except as stated in paragraph 7.
11    9.  (a) The names and places of residence of any surviving
12spouse, minor children and adult dependent* children of the
13decedent are as follows:
14Name andPlace ofAge of
15RelationshipResidenceminor child
16
17*(Note: An adult dependent child is one who is unable to
18maintain himself and is likely to become a public charge.)
19    (b) The award allowable to the surviving spouse of a
20decedent who was an Illinois resident is $.......... ($10,000,
21plus $5,000 multiplied by the number of minor children and
22adult dependent children who resided with the surviving spouse
23at the time of the decedent's death. If any such child did not
24reside with the surviving spouse at the time of the decedent's
25death, so indicate).

 

 

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1    (c) If there is no surviving spouse, the award allowable to
2the minor children and adult dependent children of a decedent
3who was an Illinois resident is $.......... ($10,000, plus
4$5,000 multiplied by the number of minor children and adult
5dependent children), to be divided among them in equal shares.
6    10. (a) The decedent left no will. The names, places of
7residence and relationships of the decedent's heirs, and the
8portion of the estate to which each heir is entitled under the
9law where decedent died intestate are as follows:
10Name, relationshipAge ofPortion of
11and place of residenceminorEstate
12OR
13
14    (b) The decedent left a will, which has been filed with the
15clerk of an appropriate court. A certified copy of the will on
16file is attached. To the best of my knowledge and belief the
17will on file is the decedent's last will and was signed by the
18decedent and the attesting witnesses as required by law and
19would be admittable to probate. The names and places of
20residence of the legatees and the portion of the estate, if
21any, to which each legatee is entitled are as follows:
22Name, relationshipAge ofPortion of
23and place of residenceminorEstate
24
25    (Strike either 10(a) or 10(b)).

 

 

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1    (c) Affiant is unaware of any dispute or potential conflict
2as to the heirship or will of the decedent.
3    10.1. Illinois law provides that the following persons are
4entitled to preference, in the following order, in having the
5authority to prepare and present a small estate affidavit:
6    (a) The surviving spouse.
7    (b) The children.
8    (c) The grandchildren.
9    (d) The parents.
10    (e) The brothers and sisters.
11    (f) The nearest kindred.
12    (g) The Public Administrator.
13    I, ........... (the Affiant) state that my relationship to
14the decedent is ................. and (check all that apply):
15    ... No heir of the decedent is entitled to prepare a small
16estate affidavit for the decedent in equal or superior
17preference to the Affiant, according to the order of preference
18set forth in paragraphs (a) through (g) above; or
19    ... The heir of the decedent entitled to prepare a small
20estate affidavit for the decedent in equal or superior
21preference to the Affiant is .......... and that person has
22declined, refused, or asked me to prepare the small estate
23affidavit; or

 

 

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1    ... The reason that the Affiant has prepared this small
2estate affidavit rather than .......... (the person having an
3equal or superior preference to the Affiant in preparing the
4affidavit) is as follows: ..............
5............................
6     Notice: When several persons are claiming the right to
7prepare a small estate affidavit, and have equal preference in
8entitlement to do so, a court may determine which of them is
9entitled to prepare the small estate affidavit.
10    11. The property described in paragraph 6 of this affidavit
11should be distributed as follows:
12     Name        Specific sum or property to be distributed
13 The foregoing statement is made under the penalties of
14 perjury*.
15
.........................
16
Signature of Affiant
     
17 *(Note: A fraudulent statement made under the penalties of
18 perjury is perjury, as defined in Section 32-2 of the Criminal
19 Code of 1961.)
20     (c) Appointment of Agent. If safe deposit access is
21 involved or if sale of any personal property is desirable to
22 facilitate distribution pursuant to the small estate
23 affidavit, all persons named in paragraph 11 of the small
24 estate affidavit (excluding minors and unascertained or
25 disabled persons) may in writing appoint one or more persons as
26 their agent for that purpose. The agent shall have power,

 

 

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1 without court approval, to gain access to, sell, and distribute
2 the property for the benefit of all persons named in paragraph
3 11 of the affidavit; and the payment, delivery, transfer,
4 access or issuance shall be made or granted to or on the order
5 of the agent.
6     (d) Release. Upon payment, delivery, transfer, access or
7 issuance pursuant to a properly executed affidavit, the person
8 or corporation is released to the same extent as if the
9 payment, delivery, transfer, access or issuance had been made
10 or granted to the representative of the estate. Such person or
11 corporation is not required to see to the application or
12 disposition of the property; but each person to whom a payment,
13 delivery, transfer, access or issuance is made or given is
14 answerable therefor to any person having a prior right and is
15 accountable to any representative of the estate.
16     (e) The affiant signing the small estate affidavit prepared
17 pursuant to subsection (b) of this Section shall indemnify and
18 hold harmless all creditors and heirs of the decedent and other
19 persons relying upon the affidavit who incur loss because of
20 such reliance. That indemnification shall only be up to the
21 amount lost because of the act or omission of the affiant. Any
22 person recovering under this subsection (e) shall be entitled
23 to reasonable attorney's fees and the expenses of recovery.
24     (f) The affiant of a small estate affidavit who is a
25 non-resident of Illinois submits himself or herself to the
26 jurisdiction of Illinois courts for all matters related to the

 

 

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1 preparation or use of the affidavit. The affidavit shall
2 provide the name, address, and phone number of a person whom
3 the affiant names as his agent for service of process. If no
4 such person is named or if, for any reason, service on the
5 named person cannot be effectuated, the clerk of the circuit
6 court of the county or judicial circuit of which the decedent
7 was a resident at the time of his death shall be the agent for
8 service of process.
9     (g) Any action properly taken under this Section, as
10 amended by Public Act 93-877, on or after August 6, 2004 (the
11 effective date of Public Act 93-877) is valid regardless of the
12 date of death of the decedent.
13 (Source: P.A. 93-877, eff. 8-6-04; 94-57, eff. 6-17-05.)
 
14     (755 ILCS 5/25-5 new)
15     Sec. 25-5. Persons entitled to preference.
16     (a) The following persons are entitled to preference, in
17 the following order, in having the authority to prepare and
18 present a small estate affidavit:
19         (1) The surviving spouse.
20         (2) The children.
21         (3) The grandchildren.
22         (4) The parents.
23         (5) The brothers and sisters.
24         (6) The nearest kindred.
25         (7) The Public Administrator.

 

 

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1     (b) The affiant shall state his or her relationship to the
2 decedent and shall include in the affidavit, as applicable: his
3 or her statement that no heir of the decedent is entitled to
4 prepare a small estate affidavit for the decedent in equal or
5 superior preference to the affiant; an identification of the
6 heir of the decedent entitled to prepare a small estate
7 affidavit for the decedent in equal or superior preference to
8 the affiant, and a statement that that person declined,
9 refused, or requested that the affiant prepare the small estate
10 affidavit; and the reason that the affiant prepared the small
11 estate affidavit rather than the person having an equal or
12 superior preference to the affiant.
13     (c) When several persons are claiming the right to prepare
14 a small estate affidavit, and have equal preference in
15 entitlement to do so, a court may determine which of them is
16 entitled to prepare the small estate affidavit.