We had a customer die who held multiple joint accounts with his wife (who is still alive), containing assets in excess of $100,000. The customer also has a savings account in his name only that does not include any beneficiaries. The value of the savings account is less than $100,000. Is a small estate affidavit required for the widow to close the account, or is this unnecessary when a spouse is closing a deceased spouse’s account? What documentation do we need to close the account?

It depends. When a surviving spouse does not have an ownership interest in their deceased spouse’s account, the surviving spouse should not be permitted to close the account without the proper authority to do so. Such authority may come from a small estate affidavit or from a will or court document appointing the surviving spouse as the executor or administrator of the deceased customer’s estate.

If your bank does not require such authority, it runs the risk that it could be held liable to the deceased customer’s estate for any payments made to the spouse that the spouse was not entitled to receive. Conversely, your bank is protected from liability when relying on a small estate affidavit.

To be eligible for a small estate affidavit, the value of the deceased customer’s entire estate (excluding any assets not solely owned) must not exceed $100,000 and must not contain real estate held in the deceased customer’s name alone. The small estate affidavit must indicate that no letters of office have been issued or requested from a probate court and that there are no disputes regarding the will or heirship of the deceased customer. The small estate affidavit also must attach a copy of the deceased customer’s death certificate and a certified copy of the will, if there is one.

On the other hand, if the deceased customer’s estate must be probated, then a duly appointed executor or administrator must close the account. The executor or administrator should provide the letters of office or other appropriate court order reflecting their authority to close the deceased customer’s account, together with a death certificate.

For resources related to our guidance, please see:

In re Estate of Muhammad, 165 Ill.App.3d 890, 893 (1st Dist. 1987) (“In making payment to a person other than the depositor, the bank acts at its peril and is liable to the depositor if the claim is not valid.”)

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.”)

Probate Act of 1975, Article XXV, 755 ILCS 5/25-1(b)(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.); . . .”)

IICLE, Estate Administration Fundamentals 2019 Edition, Chapter 1.38 (“If the value of the decedent’s assets subject to probate total $100,000 or less and the assets do not include real estate, then a small estate affidavit may be used to transfer property to the appropriate beneficiary. Assets subject to probate include assets that pass through the decedent’s will or by intestacy, because such assets are owned by the decedent and do not pass automatically at death pursuant to a beneficiary designation (such as life insurance or retirement accounts) or pursuant to a right of survivorship due to joint ownership (joint tenancy or tenancy by the entirety).”)

Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(b) (“Small Estate Affidavit. I, (name of affiant), on oath state: . . . 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(b) (“Small Estate Affidavit. I, (name of affiant), on oath state: 10. . . . (c) Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent.”)

Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(b) (“Small Estate Affidavit. I, (name of affiant), on oath state: 10. . . . (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.”)

Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(b) (“Small Estate Affidavit. I, (name of affiant), on oath state: 3. The date of the decedent’s death was . . . , and I have attached a copy of the death certificate hereto.”)

IICLE, Elements of Illinois Law: Estate Planning and Probate Administration 2015 Edition, Chapter 2.14 (“As an initial matter, it is necessary to identify title to the decedent’s assets in order to determine whether probate is necessary. Only assets held in the decedent’s name alone require probate. After identifying the probate assets, it must be decided whether summary administration or a small estate affidavit can be used to collect and distribute the assets. If the value of the probate assets exceeds $100,000 or includes real estate, neither the small estate affidavit nor summary administration is available. Under these circumstances, an estate must be opened to administer the assets properly.”)