Yes, 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 (or anyone else) has petitioned a court or been appointed by a court to be the estate’s executor. Notably, the statutory form for the small estate affidavit includes language attesting that “no letters of office” have been issued by or requested from a probate court.
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:
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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; . . .”)
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Probate Act of 1975, Article XXV, Small Estates, 755 ILCS 5/25-1(b) (“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. 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: . . .”)
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Probate Act of 1975, Article IX, Letters of Administration, 755 ILCS 5/9-8 (If the conditions for summary estate administration are met, “the court may determine the rights of claimants and other persons interested in the estate, direct payment of claims and distribution of the estate on summary administration and excuse the issuance of letters of office or revoke the letters which have been issued and discharge the representative.”)
- Radwill v. Romeo, 2013 WL 1289072, ¶ 24 (1st Dist. 2013) (“To require an institution such as MB to essentially look behind a properly executed affidavit and independently investigate and confirm the facts set forth therein would place a burden on the bank that the legislature did not see fit to impose and would run counter to the scheme created by the Act.”)