Topic: Small Estate Affidavits
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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…
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With a small estate affidavit, can the affiant be allowed to open an estate account and act as executor of the estate?
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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…
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After one of our customers died last year, the executor directed us to distribute the customer’s accounts with appropriate documentation (a certified copy of the will and death certificate, as well as a small estate affidavit). Recently, another individual came into the bank with letters of office appointing the individual as administrator of the estate — from the same court in which the customer’s will naming the executor was filed. Which one takes precedence over the other? Have we transacted correctly?
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First, it is important to note that your institution is protected from liability when relying on a small estate affidavit. Because your institution distributed the customer’s accounts in reliance on the small estate affidavit presented by the executor, you are “fully protected and released” from any claims that may be made by the administrator regarding…
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After a safe deposit box customer died, one of the customer’s children came in with keys to the box. However, no executor or administrator has been appointed for the customer. How should we go about closing out the box?
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If someone can present a small estate affidavit to your institution, that individual may open the safe deposit box and remove its contents. A financial institution is required to permit a person designated in a small estate affidavit to “open the box and examine and remove the contents.” For resources related to our guidance, please…
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We have seen other institutions’ small estate affidavit forms that include additional text from the law itself (755 ILCS 5/25-1). Should we include that information on our small estate affidavit form?
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No, you are not required to include any additional language from the law, other than subsection (b), which contains the statutory small estate affidavit form. The Illinois Probate Act requires a financial institution to comply with a small estate affidavit that is “substantially in compliance” with the statutory form, and it protects financial institutions from…
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Does Illinois law require a waiting period between the date of death and when a small estate affidavit may be presented to a financial institution?
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No, there is no waiting period between the date of death and when the small estate affidavit may be presented to a financial institution. The statutory small estate affidavit form requires the affiant to state the date of the decedent’s death, but it does not impose a waiting period. For resources related to our guidance,…
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A deposit account customer died while in another country a few months ago. A relative of the customer sent us the foreign death certificate and requested information about how to close the account. What should we require before closing the account and transferring the funds?
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Because this situation may involve litigation risks, among other risks, we do not recommend paying the account to the accountholder’s relative without additional documentation. We are aware of at least one Illinois court holding that when a payment is made to a person other than the depositor, the bank acts at its peril and would…
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A non-customer came into the bank with a small estate affidavit and death certificate and asked to cash a check made out to the deceased person. The deceased person did not have an account with the bank. Can we cash the check?
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Cashing a check for a non-customer when you are not the payor bank on the check is strictly a business decision, and the presentation of a small estate affidavit with the check does not change that equation.
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We received a small estate affidavit and will for a customer, and we received calls from two relatives of the deceased customer stating that the trust is void and that the estate is over $100,000. What should we do?
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These inquiries are red flags that this situation involves a higher risk of litigation. Because the bank might be named in a lawsuit (either from the affiant or from an unhappy relative who was not named in the small estate affidavit), we highly recommend contacting bank counsel who would be able to provide legal advice…