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Can small estate affidavits be filed in court? When I called a local court to ask, I was told that while it’s not required, some individuals choose to file small estate affidavits with the court. – IBA Compliance Connection

IBA Compliance Connection

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Can small estate affidavits be filed in court? When I called a local court to ask, I was told that while it’s not required, some individuals choose to file small estate affidavits with the court.

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We are not aware of any prohibition against filing a small estate affidavit with a court. However, we agree that such a filing is not required in Illinois. The Illinois Probate Act requires a financial institution to comply with a small estate affidavit that is in substantially the same form outlined in the Act, and it protects financial institutions from liability when relying on a small estate affidavit — regardless of whether the affidavit has been filed with a court.

For resources related to our guidance, please see:

  • Probate Act of 1975, Article XXV, 755 ILCS 5/25-1(a) (“When any person, corporation, or financial institution . . . is furnished with a small estate affidavit in substantially the form hereinafter set forth, that person, corporation, or financial institution shall pay the indebtedness, grant access to the safe deposit box, deliver the personal estate . . . .”)

  • Probate Act of 1975, 755 ILCS 5/25-1(d) (“Any person, corporation, or 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 . . . .”)