97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3298

 

Introduced 2/24/2011, by Rep. Patricia R. Bellock

 

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

    Amends the Probate Act of 1975. Provides that any person, corporation, or financial institution (instead of person or corporation) holding or controlling personal property shall, upon examining and approving the documents attached to the affidavit, deliver or pay (instead of deliver or pay) over the personal property pursuant to the provisions of the small estate affidavit. Provides that the affidavit shall state that the burial and funeral expenses, medical bills, credit card bills, and real property taxes (instead of funeral expenses) have been, or remain to be, paid. Provides that if there is a surviving spouse, but the surviving spouse is unable to prepare the small estate affidavit or has declined, refused, or asked the affiant to prepare the small estate affidavit, the affiant must state the reason that the affiant has prepared the small estate affidavit rather than the surviving spouse. Provides that the explanation shall include the precise time, date, and circumstances of the surviving spouse declining, refusing, or asking the affiant to prepare the small estate affidavit or state the reason that the surviving spouse is unable to prepare the small estate affidavit. Provides that if the reason for the surviving spouse's inability to prepare the affidavit is medically related that a letter from the surviving spouse's physician should be attached attesting to the medical condition that makes the surviving spouse unable to complete the affidavit. Provides that if there is no surviving spouse and there is one or more minor children, the affiant must be a court appointed guardian for one or more of the children. Provides that the property held shall be paid, after the burial, funeral, medical, and credit card bills, and real estate taxes are paid. Provides that if the surviving spouse is the affiant that he or she shall affirm that he or she was not separated from the decedent. Makes other changes.


LRB097 05568 AJO 45630 b

 

 

A BILL FOR

 

HB3298LRB097 05568 AJO 45630 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Section 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
8upon affidavit.
9    (a) When any person, or corporation, or financial
10institution (1) indebted to or holding personal estate of a
11decedent, (2) controlling the right of access to decedent's
12safe deposit box or (3) acting as registrar or transfer agent
13of any evidence of interest, indebtedness, property or right is
14furnished with a small estate affidavit in substantially the
15form hereinafter set forth, that person, or corporation, or
16financial institution upon examining and approving the
17documents presented by the affiant which are attached to the
18small estate affidavit shall pay the indebtedness, grant access
19to the safe deposit box, deliver the personal estate or
20transfer or issue the evidence of interest, indebtedness,
21property or right to persons and in the manner specified in
22paragraph 11 of the affidavit or to an agent appointed as
23hereinafter set forth.

 

 

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

 

 

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1    6. The gross value of the decedent's entire personal
2estate, including the value of all property passing to any
3party either by intestacy or under a will, does not exceed
4$100,000. (Here, list each asset, e.g., cash, stock, and its
5fair market value.);
6    7. (a) All of the decedent's burial and funeral expenses
7have been paid, or (b) The amount of the decedent's unpaid
8burial and funeral expenses, medical bills, credit card bills,
9and real property taxes and the name and post office address of
10each person entitled thereto are as follows:
11Name and post office addressAmount
12(Strike either 7(a) or 7(b)).
13    8. There is no known unpaid claimant or contested claim
14against the decedent, except as stated in paragraph 7.
15    9.  (a) The names and places of residence of any surviving
16spouse, minor children and adult dependent* children of the
17decedent are as follows:
18Name andPlace ofAge of
19RelationshipResidenceminor child
20
21*(Note: An adult dependent child is one who is unable to
22maintain himself and is likely to become a public charge.)

 

 

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1    (b) The award allowable to the surviving spouse of a
2decedent who was an Illinois resident is $.......... ($20,000,
3plus $10,000 multiplied by the number of minor children and
4adult dependent children who resided with the surviving spouse
5at the time of the decedent's death. If any such child did not
6reside with the surviving spouse at the time of the decedent's
7death, so indicate).
8    (c) If there is no surviving spouse, the award allowable to
9the minor children and adult dependent children of a decedent
10who was an Illinois resident is $.......... ($20,000, plus
11$10,000 multiplied by the number of minor children and adult
12dependent children), to be divided among them in equal shares.
13If there is no surviving spouse and there are minor children,
14the affiant must be a court appointed guardian for one or more
15of the children. If this provision applies, the date of the
16court order making this appointment was .........., and I have
17attached a copy of the court order.
18    10. (a) The decedent left no will. The names, places of
19residence and relationships of the decedent's heirs, and the
20portion of the estate to which each heir is entitled under the
21law, after all just debts and expenses described in paragraph 7
22are fully paid, where decedent died intestate are as follows:
23Name, relationshipAge ofPortion of
24and place of residenceminorEstate
25OR
26

 

 

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1    (b) The decedent left a will, which has been filed with the
2clerk of an appropriate court. A certified copy of the will on
3file is attached. To the best of my knowledge and belief the
4will on file is the decedent's last will and was signed by the
5decedent and the attesting witnesses as required by law and
6would be admittable to probate. The names and places of
7residence of the legatees and the portion of the estate, if
8any, to which each legatee is entitled are as follows:
9Name, relationshipAge ofPortion of
10and place of residenceminorEstate
11
12    (Strike either 10(a) or 10(b)).
13    (c) Affiant is unaware of any dispute or potential conflict
14as to the heirship or will of the decedent.
15
16    10.1. I, ............(the affiant) state that I am the
17surviving spouse and the decedent and I resided together as
18husband and wife and we were not legally separated, or
19otherwise separated, at the time of decedent's death.
20
21    10.2. I, ........... (the affiant) state that my
22relationship to the decedent is ................. and (check
23all that apply):
24... there is no surviving spouse; or
25... there is a surviving spouse, but the surviving spouse is:

 

 

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1
2    ... unable to prepare the small estate affidavit for
3medical reasons as shown by the attached letter of a physician
4for the surviving spouse, based upon the physician's
5examination of the surviving spouse within 90 days prior to the
6date of the affidavit, attesting to and describing this
7disabling medical condition; or
8
9    ... has declined, refused, or asked affiant to prepare the
10small estate affidavit. The reason that the affiant has
11prepared this small estate affidavit rather than the surviving
12spouse is that (state here the precise time, date, and
13circumstances of the surviving spouse declining, refusing, or
14asking affiant to prepare the small estate affidavit):
15..........................................................
16Attached is a statement of the surviving spouse in which the
17surviving spouse expressly declines or states that he or she
18refuses to prepare the small estate affidavit or expressly
19requests that the affiant prepare the small estate affidavit.
20This statement must be signed by the surviving spouse,
21witnessed by 2 persons unrelated to the affiant, and be
22notarized.
23    11. The property described in paragraph 6 of this affidavit
24should be distributed, after all just debts and expenses
25described in paragraph 7 are fully paid, as follows:
26    Name        Specific sum or property to be distributed
 
 

 

 

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1The foregoing statement is made under the penalties of
2perjury*.
3
.........................
4
Signature of Affiant
     
5*(Note: A fraudulent statement made under the penalties of
6perjury is perjury, as defined in Section 32-2 of the Criminal
7Code of 1961.)
8    (c) Appointment of Agent. If safe deposit access is
9involved or if sale of any personal property is desirable to
10facilitate distribution pursuant to the small estate
11affidavit, all persons named in paragraph 11 of the small
12estate affidavit (excluding minors and unascertained or
13disabled persons) may in writing appoint one or more persons as
14their agent for that purpose, provided that the writing
15contains the signature of each person, is witnessed by 2
16persons unrelated to the affiant and is notarized, and also
17shows the written consent of the surviving spouse and all adult
18children. The agent shall have power, without court approval,
19to gain access to, sell, and distribute the property for the
20benefit of all persons named in paragraph 11 of the affidavit;
21and the payment, delivery, transfer, access or issuance shall
22be made or granted to or on the order of the agent.
23    (d) Release. Upon examination and approval of all documents
24presented by the affiant with this small estate affidavit,

 

 

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1payment, delivery, transfer, access or issuance pursuant to a
2properly executed affidavit, the person, or corporation, or
3financial institution is released to the same extent as if the
4payment, delivery, transfer, access or issuance had been made
5or granted to the representative of the estate. Such person, or
6corporation, or financial institution is not required to see to
7the application or disposition of the property; but each person
8to whom a payment, delivery, transfer, access or issuance is
9made or given is answerable therefor to any person having a
10prior right and is accountable to any representative of the
11estate.
12    (e) The affiant signing the small estate affidavit prepared
13pursuant to subsection (b) of this Section shall indemnify and
14hold harmless all creditors and heirs of the decedent and other
15persons relying upon the affidavit who incur loss because of
16such reliance. That indemnification shall only be up to the
17amount lost because of the act or omission of the affiant. Any
18person recovering under this subsection (e) shall be entitled
19to reasonable attorney's fees and the expenses of recovery.
20    (f) The affiant of a small estate affidavit who is a
21non-resident of Illinois submits himself or herself to the
22jurisdiction of Illinois courts for all matters related to the
23preparation or use of the affidavit. The affidavit shall
24provide the name, address, and phone number of a person whom
25the affiant names as his agent for service of process. If no
26such person is named or if, for any reason, service on the

 

 

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1named person cannot be effectuated, the clerk of the circuit
2court of the county or judicial circuit of which the decedent
3was a resident at the time of his death shall be the agent for
4service of process.
5    (g) Any action properly taken under this Section, as
6amended by Public Act 93-877, on or after August 6, 2004 (the
7effective date of Public Act 93-877) is valid regardless of the
8date of death of the decedent.
9    (h) The changes made by this amendatory Act of the 96th
10General Assembly apply to a decedent whose date of death is on
11or after the effective date of this amendatory Act of the 96th
12General Assembly.
13(Source: P.A. 96-968, eff. 7-2-10.)