Question
My father died in Illinois without a will. His debts to my knowledge are as follows.
2 credit cards with low balances.
one car note
His assets are one account with $20k.
He is one of four siblings listed on a deed as tenants in common to house that is free and clear and worth about $30K.
Are we able to file a small estate affidavit with the above circumstance? The note holder to the car is stating that they will not release a pay off amount to us without a letter of office. I'm trying to determine if I have to go through probate or if I can use the small estate affidavit. I've read conflicting information and I'm not a resident of IL so I'm lost.
Answer
You may find some uncertainty even among Illinois attorneys as the Small Estate statute was just revised with a 1/1/15 effective date. Prior, the small estate procedure could not be used if there were claims beyond funeral and burial expenses. Now, since creditors can be dealt with through the new statute, there is some likelihood that the lender can be convinced that they must honor a small estate affidavit. Many of us will want to take a look at the expanded possibilities before giving you an opinion. Plans for the real estate should also be considered. Very likely, you can work with an attorney by telephone.
Answer
You may be able to get the title to the automobile changed with the Illinois Secretary of State, and then one of the owners may be able to get past the red tape with the lender. Also, just watch for your father's mail to arrive. If the monthly payment is skipped, there will be a letter.
The new small estate affidavit is for persons whose death occurs after January 1, 2015,
The bank would be able to liquidate your father's bank accounts if your father had named a beneficiary or beneficiaries on the account,
The surviving brothers should make sure they have written wills or perhaps a plan to put title to the property into a limited liability company or a trust to avoid the need for probate.
