Is the small estate affidavit process available when a decedent owned real property and did not transfer title to a land or personal trust before death? In this case, the decedent’s personal property does not exceed the $100,000 threshold, but the decedent’s real property would cause the total estate’s value to exceed that threshold.

The Illinois Probate Act’s plain language is unclear on this point, but there seems to be a consensus among Illinois practitioners that the small estate process is unavailable if the decedent’s estate includes real estate.

The small estate provisions of the Probate Act require that “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.” “Personal estate” is not defined, but the Probate Act consistently distinguishes between a decedent’s real and personal estate.

This statutory language does not expressly exclude estates that include real estate from the small estate process, and we are not aware of any case law addressing this issue. However, secondary sources and Illinois practitioners consistently advise against the use of a small estate affidavit when a decedent’s estate includes real estate. For example, an Illinois treatise on probate administration states that “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.” Elsewhere in the text, the treatise notes that “the small estate affidavit procedure is not available if the decedent owned real estate in his or her name alone.” Consequently, in our view, the small estate procedure is unavailable if the decedent’s estate includes real estate.

For resources related to our guidance, please see:

Probate Act of 1975, Article XXV, 755 ILCS 5/25-1(b)(6) (“The gross value of the decedent'sentire 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.);”)

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.”)

Elements of Illinois Law: Estate Planning and Probate Administration 2015 Edition, Chapter 2.7 (“If the gross value of the decedent’s personal estate is $100,000 or less and the decedent was an Illinois resident, an affidavit may be used to transfer the property to the appropriate beneficiaries under the decedent’s will or those identified under the statute of descent and distribution, and formal probate can be avoided. 755 ILCS 5/25-1. The small estate affidavit procedure is not available if the decedent owned real estate in his or her name alone.”)