IBA Compliance Connection

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Do we need to require court documents (such as letters of office) when the affiant on a small estate affidavit wants to open an estate account? The customer has the will and death certificate but has not been appointed executor.

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No, letters of office are not necessary to open an account for a small estate.

The affiant of a small estate affidavit may act as the estate’s executor and open an account for the estate on the basis of the affidavit — provided that neither the affiant nor anyone else has requested or received letters of office from a probate court, as such letters would take precedence over the small estate affidavit.

We recommend following your bank’s existing policies and procedures for establishing accounts for estates, which, if there is a will or a trust, should include obtaining documentation to confirm that the affiant was named as the executor in the decedent’s will or trust instrument.  

For resources related to our guidance, please see:

  • Probate Act of 1975, Article XXV, 755 ILCS 5/25-1(a)  (“When any . . . financial institution  . . .  holding personal estate of a decedent . . . is furnished with a small estate affidavit in substantially the form hereinafter set forth, that . . . financial institution 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 the affidavit or to an agent appointed as hereinafter set forth.”)
  • Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(b) (“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; . . .”)
  • Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(d) (“Any . . . financial institution who acts in good faith reliance on a copy of a document purporting to be a small estate affidavit that is substantially in compliance with subsection (b) of this Section shall be fully protected and released upon payment, delivery, transfer, access or issuance pursuant to such a document to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate.”)