Not all inheritance property issues require the opening of a full Probate Estate to distribute the Assets.
Oftentimes, a deceased person has designated a Beneficiary for their Bank Accounts, Automobiles, Insurance Policies, IRA's, 401(k)'s and other Financial Accounts. Many have designated a beneficiary for Real Estate using a Beneficiary Deed to transfer their real estate.
These non-probate transfers take the affected property out of the ":Estate" so that no Probate Court action is needed for the property which passes to beneficiar(ies) automatically upon death. Still, there may be property remaining which has not been designated to pass upon the decedent's death.
In Missouri, if the property owned by the Decedent is $40,000.00 or less, the property can be transferred to the heirs by use of a Small Estate Affidavit pursuant to Section 473.097, which provides an expedited procedure that can typically be finalized within a couple of months as opposed to a Full Probate Estate which generally takes a year (or more) to finalize.
The Statute sets forth as follows:
473.097, Missouri Revised Statutes. Small estate — distribution of assets without letters, when — affidavit — procedure — fee. — 1. Distributees of an estate which consists of personal property or real property or both personal and real property have a defeasible right to the personal property, and are entitled to the real property of such estate, as provided in this section, without awaiting the granting of letters testamentary or of administration, if all of the following conditions are met:
(1) The value of the entire estate, less liens, debt, and encumbrances, does not exceed forty thousand dollars;
(2) Thirty days have elapsed since the death of the decedent and no application for letters or for administration or for refusal of letters under section 473.090 is pending or has been granted, or if such refusal has been granted and subsequently revoked;
(3) A bond, in an amount not less than the value of the personal property, approved by the judge or clerk of the probate division is filed by the person making the required affidavit conditioned upon the payment of the debts of the decedent, including any debts to the state of Missouri, the expenses of funeral and burial and compliance with future orders of the court in relation to the estate of the decedent; and further conditioned that any part of the property to which the distributee is not entitled will be delivered to the persons entitled to the property under the law. Liability of the sureties on the bonds provided for in this section terminates unless proceedings against them are instituted within two years after the bond is filed; except that, the court may dispense with the filing of a bond if it finds that the same is not necessary;
(4) A fee, in the amount prescribed in subsection 1 of section 483.580, and when required, the publication cost of the notice to creditors are paid or the proof of payment for such publication is provided to the clerk of the probate division.
2. Notwithstanding the limitation periods set out in section 473.050, the affidavit required by this section may be made by the person designated as personal representative under the will of the decedent, if a will has been presented for probate within the limitation periods specified in section 473.050, otherwise by any distributee entitled to receive property of the decedent any time after thirty days after decedent's death, and shall set forth all of the following:
(1) That the decedent left no will or, if the decedent left a will, that the will was presented for probate within the limitation periods specified in section 473.050;
(2) That all unpaid debts, claims or demands against the decedent or the decedent's estate and all estate taxes due, if any, on the property transfers involved have been or will be paid, except that any liability by the affiant for the payment of unpaid claims or demands shall be limited to the value of the property received;
(3) An itemized description and valuation of property of the decedent. As used in this subdivision, the phrase "property of the decedent" shall not include property which was held by the decedent as a tenant by the entirety or a joint tenant at the time of the decedent's death;
(4) The names and addresses of persons having possession of the property;
(5) The names, addresses and relationship to the decedent of the persons entitled to and who will receive, the specific items of property remaining after payment of claims and debts of the decedent, included in the affidavit;
(6) The facts establishing the right to such specific items of property as prescribed by this section.
The certificate of the clerk shall be annexed to or endorsed on the affidavit and shall show the names and addresses of the persons entitled to the described property under the facts stated in the affidavit and shall recite that the will of decedent has been probated or that no will has been presented to the court and that all estate taxes on the property, if any are due, have been paid.
3. A copy of the affidavit and certificate shall be filed in the office of the clerk of the probate division and copies of the affidavit and certificate shall be furnished by the clerk.
4. The distributees mentioned in this section may establish their right to succeed to the real estate of the decedent by filing a copy of the foregoing affidavit and certificate of the clerk in the office of the recorder of deeds of each county where the real property is situated.
5. When the value of the property listed in the affidavit is more than fifteen thousand dollars, the clerk shall cause to be published in a newspaper of general circulation within the county which qualifies under chapter 493 a notice to creditors of the decedent to file their claims in the court or be forever barred. The notice shall be published once a week for two consecutive weeks. Proof of publication of notice pursuant to this section shall be filed not later than ten days after completion of the publication. The notice shall be in substantially the following form:
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To all persons interested in the estate of ______, Decedent: |
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On the ______ day of ______, 20______, a small estate affidavit was filed by the distributees for the decedent under section 473.097, RSMo, with the probate division of the circuit court of ______ County, Missouri. |
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All creditors of the decedent, who died on ______, 20______, are notified that section 473.444 sets a limitation period that would bar claims one year after the death of the decedent. A creditor may request that this estate be opened for administration. |
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Receipt of this notice should not be construed by the recipient to indicate that the recipient may possibly have a beneficial interest in the estate. The nature and extent of any person's interest, if any, may possibly be determined from the affidavit on this estate filed in the probate division of the circuit court of ______ County, Missouri. |
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Date of first publication is ______, 20______ |
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__________________ |
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Clerk of the Probate Division |
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of the Circuit Court |
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______ County, Missouri |
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6. Upon compliance with the procedure required by this section, the personal property and real estate involved shall not thereafter be taken in execution for any debts or claims against the decedent, but such compliance has the same effect in establishing the right of distributees to succeed to the property as if complete administration was had; but nothing in this section affects the right of secured creditors with respect to such property.
7. The affiant shall collect the property of decedent described in the affidavit. The property of decedent shall be liquidated by the affiant to the extent necessary to pay debts of decedent. If the decedent's property is not sufficient to pay such debts, abatement of the shares of the distributees shall occur in accordance with section 473.620. The affiant shall distribute the remaining property to such persons identified in the affidavit as required in subdivision (5) of subsection 2 of this section who are entitled to receive the specific items of personal property, as described in the affidavit, or to have any evidence of such property transferred to such persons. To the extent necessary to facilitate distribution, the affiant may liquidate all or part of decedent's property.
In Missouri, a Small Estate Affidavit is an actual filing in the Probate Court for the County where the deceased person was domiciled when they died.
In Illinois, a Small Estate Affidavit, is literally an "AFFIDAVIT'" and does not need to filed with the Probate Court. In Illinois, a Small Estate Affidavit can be used to transfer personal property up to the value of $100,000.00.
755 Illinois Compiled Statutes 5/Article % provides:
(755 ILCS 5/Art. XXV heading)ARTICLE XXVSMALL ESTATES |
(755 ILCS 5/25-1) (from Ch. 110 1/2, par. 25-1) Sec. 25-1. Payment or delivery of small estate of decedent upon affidavit. (a) When any person, corporation, or financial institution (1) indebted to or holding personal estate of a decedent, (2) controlling the right of access to decedent's safe deposit box or (3) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right 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 or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in the affidavit or to an agent appointed as hereinafter set forth. (b) Small Estate Affidavit I, (name of affiant) , on oath state: 1. (a) My post office address is: ; (b) My residence address is: ; and (c) I understand that, if I am an out-of-state resident, I submit myself to the jurisdiction of Illinois courts for all matters related to the preparation and use of this affidavit. My agent for service of process in Illinois is:
NAME..........................ADDRESS.......................CITY..........................TELEPHONE (IF ANY)............I understand that if no person is named above as my agent for service or, if for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of ......(County) (Judicial Circuit) Illinois is recognized by Illinois law as my agent for service of process. 2. The decedent's name is ; 3. The date of the decedent's death was , and I have attached a copy of the death certificate hereto. 4. The decedent's place of residence immediately before his death was ; 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; 6. The gross value of 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. (Here, list each asset, e.g., cash, stock, and its fair market value.); 7. (a) All of the decedent's funeral expenses and other debts have been paid, or (b) All of the decedent's known unpaid debts are listed and classified as follows (include the name, post office address, and amount): Class 1: funeral and burial expenses, which include
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.......................................................... Class 2: the surviving spouse's award or child's award,
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.......................................................... Class 3: debts due the United States, as follows: .......................................................... Class 4: money due employees of the decedent of not more
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.......................................................... Class 5: money and property received or held in trust by
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.......................................................... Class 6: debts due the State of Illinois and any county,
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.......................................................... Class 7: all other claims, as follows: ..........................................................(Strike either 7(a) or 7(b)). 7.5. I understand that all valid claims against the decedent's estate described in paragraph 7 must be paid by me from the decedent's estate before any distribution is made to any heir or legatee. I further understand that the decedent's estate should pay all claims in the order set forth above, and if the decedent's estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata. 8. There is no known unpaid claimant or contested claim against the decedent, except as stated in paragraph 7. 9. (a) The names and places of residence of any surviving spouse, minor children and adult dependent* children of the decedent are as follows:
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*(Note: An adult dependent child is one who is unable to maintain himself and is likely to become a public charge.) (b) The award allowable to the surviving spouse of a decedent who was an Illinois resident is $.......... ($20,000, plus $10,000 multiplied by the number of minor children and adult dependent children who resided with the surviving spouse at the time of the decedent's death. If any such child did not reside with the surviving spouse at the time of the decedent's death, so indicate). (c) If there is no surviving spouse, the award allowable to the minor children and adult dependent children of a decedent who was an Illinois resident is $.......... ($20,000, plus $10,000 multiplied by the number of minor children and adult dependent children), to be divided among them in equal shares. 10. (a) The decedent left no will. The names, places of residence and relationships of the decedent's heirs, and the portion of the estate to which each heir is entitled under the law where decedent died intestate are as follows:
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(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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(Strike either 10(a) or 10(b)). (c) Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent. 10.3. My relationship to the decedent or the decedent's estate is as follows:. 10.5. (The following paragraph should appear in bold type and in not less than 14-point font): I understand that the decedent's estate must be
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11. After payment by me from the decedent's estate of all debts and expenses listed in paragraph 7, any remaining property described in paragraph 6 of this affidavit should be distributed as follows: Name Specific sum or property to be distributedThe foregoing statement is made under the penalties of perjury*.
.........................Signature of Affiant Signed and sworn before me on (insert date)..........................Notary Public*(Note: A fraudulent statement made under the penalties of perjury is perjury, as defined in Section 32-2 of the Criminal Code of 2012.) (c) Appointment of Agent. If safe deposit access is involved or if sale of any personal property is desirable to facilitate distribution pursuant to the small estate affidavit, the affiant under the small estate affidavit may in writing appoint one or more persons as the affiant's agent for that purpose. The agent shall have power, without court approval, to gain access to, sell, and distribute the property in the manner specified in paragraphs 7.5 and 11 of the affidavit; and the payment, delivery, transfer, access or issuance shall be made or granted to or on the order of the agent. The affiant may appoint himself or herself as the designated representative to exercise the powers and perform the duties of an agent described in this subsection (c). (d) Reliance and Release. 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 upon payment, delivery, transfer, access or issuance pursuant to such a document to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate. Such person, corporation, or financial institution is not required to see to the application or disposition of the property; but each person to whom a payment, delivery, transfer, access or issuance is made or given is answerable therefor to any person having a prior right and is accountable to any representative of the estate. (e) Distributions pursuant to an affidavit substantially in the form set forth in subsection (b) of this Section may be made to the affiant, if so specified in paragraph 11, notwithstanding the disclosure of known unpaid debts. The affiant, acting on behalf of the decedent's estate, is obligated to pay all valid claims against the decedent's estate before any distribution is made to any heir or legatee. The affiant signing the small estate affidavit prepared pursuant to subsection (b) of this Section shall indemnify and hold harmless all creditors, heirs, and legatees of the decedent and other persons, corporations, or financial institutions relying upon the affidavit who incur loss because of such reliance. That indemnification shall only be up to the amount lost because of the act or omission of the affiant. Any person, corporation, or financial institution recovering under this subsection (e) shall be entitled to reasonable attorney's fees and the expenses of recovery. (f) The affiant of a small estate affidavit who is a non-resident of Illinois submits himself or herself to the jurisdiction of Illinois courts for all matters related to the preparation or use of the affidavit. The affidavit shall provide the name, address, and phone number of a person whom the affiant names as his agent for service of process. If no such person is named or if, for any reason, service on the named person cannot be effectuated, the clerk of the circuit court of the county or judicial circuit of which the decedent was a resident at the time of his death shall be the agent for service of process. (g) Any action properly taken under this Section, as amended by Public Act 93-877, on or after August 6, 2004 (the effective date of Public Act 93-877) is valid regardless of the date of death of the decedent. (h) The changes made by this amendatory Act of the 96th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 96th General Assembly. (i) The changes made by this amendatory Act of the 98th General Assembly apply to a decedent whose date of death is on or after the effective date of this amendatory Act of the 98th General Assembly.(Source: P.A. 97-1150, eff. 1-25-13; 98-836, eff. 1-1-15.)
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