Topic: Small Estate Affidavits
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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?
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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…
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The daughter of a deceased customer has presented a small estate affidavit and a will naming her as the executor. The deceased customer was receiving monthly checks as part of a personal injury claim settlement that are supposed to continue for the next twelve months. The daughter would like to withdraw the funds in the account but keep the account open so that it may continue to receive the monthly checks. Can we allow the daughter to make a partial withdrawal from the account while keeping the account open for these deposits?
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Provided the combined future monthly settlement payments together with all other estate assets do not exceed $100,000, we believe your bank may rely on the small estate affidavit and honor withdrawals made from the decedent’s account by the executor of the small estate (the affiant). In our view, whether your bank should keep the decedent’s…
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Our customers executed a small estate affidavit to settle the estate of their deceased son, who did not have an account with us. Subsequently, the parents received a tax refund check from the State of Illinois made payable to their son. Can the parents cash the check made out to their son?
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We believe that the appropriate course of action for your customers is to file a claim for the refund from the Illinois Department of Revenue (Illinois DOR) using Form-1310, Statement of Person Claiming Refund Due a Deceased Taxpayer. We spoke with a representative from the Illinois DOR, who advised that submitting a Form-1310 would be…
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The attorney representing a deceased customer’s estate has requested information about the customer’s credit life insurance policy on her mortgaged residential real estate. To facilitate the information request, the attorney would like to present us with a small estate affidavit and the customer’s death certificate. Can we provide this information to the attorney? We know the customer’s estate includes real property, so is it proper for us to rely on a small estate affidavit? Or should we require letters of office?
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Yes, we believe that your bank may release information about your deceased customer’s credit life insurance policy to the estate’s attorney. However, we recommend consulting with your bank counsel to determine what documentation would be sufficient to establish that the attorney is acting in a fiduciary or representative capacity on behalf of your customer’s estate…
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A deceased customer’s family member would like to search her safe deposit box for a will. The family member has no keys, so we would have to drill the box. Do we need a court order to drill the box to search for a will?
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No, you do not need a court order to drill the box. Absent a court order, your bank should obtain a safety deposit box opening affidavit from the family member, who must satisfy certain requirements in the Illinois Safety Deposit Box Opening Act (the Act). The Act requires banks to open a safety deposit box…
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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.
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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…
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When we close a deceased customer’s account according to a small estate affidavit, should we make the check payable to the affiant or to the estate of the deceased customer?
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The terms of the small estate affidavit will dictate whom to make the check payable to. The statutory form for an Illinois small estate affidavit directs property holders (such as banks) to distribute the decedent’s property according to the terms of the affidavit. Accordingly, the affidavit may direct the bank to disburse the account funds…
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Can we require a person who has presented a small estate affidavit to present letters of office before they close out a deceased customer’s account?
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No, we do not believe that you can require letters of office when presented with a small estate to close a deceased customer’s account. 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. The statutory form for the…
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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…
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Can a customer use a small estate affidavit for his mother’s estate (which is well under $100,000) if his mother resided and died in Missouri? She left a will and was survived by three children. Also, does our customer have to be named as the executor of her will in order to serve as affiant on the small estate affidavit?
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Yes, we believe that an Illinois small estate affidavit can be used in Illinois even when the deceased was not an Illinois resident. Also, Illinois law does not require that the affiant for a small estate affidavit be an executor of the deceased individual’s will. When your bank makes distributions of property in accordance with…