Law Q&A | FYI on SEA? Ask an attorney - Champaign/Urbana News-Gazette

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Under Illinois law, if my spouse died and a bank has a certificate of deposit in my spouse’s name that I am entitled to inherit, is there some way to get that money without going through probate court?

Possibly. It would be through the use of a small estate affidavit.

A small estate affidavit (SEA) is a document filled out and signed by the presenter of the SEA. It is to be used by the presenter to get a holder of the decedent’s property to turn possession of such property over to the presenter of the SEA. The SEA is to be presented with a copy of the decedent’s will, if any, and a death certificate.

An SEA can be filled out and signed by anyone. Usually, it’s by a person who is entitled to some or all of the property of the decedent, or someone who was named executor in the decedent’s will. Executors are in charge of gathering and distributing property of a decedent per the terms of the will and/or requirements of the law.

In presenting the document to a holder of the decedent’s property, the holder is absolved under the law for turning over such property if the affidavit is filled out in compliance with Illinois’ law for SEAs. The signer is representing under penalty of perjury that the information in the SEA is true and correct.

Several elements must be met for an SEA to be used.

Aside from information about the SEA signer, the SEA must state the identity of the decedent and date and place of death. The total amount of personal property in the decedent’s estate (what the decedent owned at the time of death) must be worth $100,000 or less. It needs to list the property, particularly automobiles, in the estate.

The decedent’s estate must have no real estate. If the estate has real estate, Illinois requires the estate of the decedent be probated in court. Some real estate owned by the decedent at death may not have passed into the decedent’s probate estate. Property owned in joint tenancy with another, or property designated to go to certain parties upon death in a recorded Transfer on Death Instrument, are properties that may not pass into the decedent’s estate.

The SEA is effective only if no probate case was already filed and pending in a court.

The SEA also requires that if there is a will, it is to be filed with the clerk of the court in the county where the person lived within 30 days of the death.

Finally, unpaid creditors of the decedent must be listed, and the person who signs the SEA promises to make sure they are paid before inheritors are. Those inheritors must also be listed, either as heirs or as persons named in a will to receive the property.

The Illinois Secretary of State has SEA forms available through its website. An attorney can also prepare one. If you are not sure whether an SEA can be used or a probate case needs to be opened in court, check with a lawyer. That’s another thing lawyers are useful for.

Everyone hates lawyers.

Until you need one. Then they’re your best friend on the planet.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

The Link Lonk


May 09, 2021 at 09:00PM
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Law Q&A | FYI on SEA? Ask an attorney - Champaign/Urbana News-Gazette

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