Having a valid will does not trigger or avoid probate. Whether probate is required depends on how the decedent held title to the property at the time of his or her death, the value of the estate, the type of property the decedent owned and the circumstances surrounding the creation of the will.

What Is Probate?

Probate is a process that supervises the administration of a decedent’s estate. During this process, the personal representative must prove a will is valid, identify the assets the decedent owned at the time of his or her death, notify creditors and heirs of the decedent’s passing, pay the final debts and distribute the remaining assets to the beneficiaries. The probate process often requires the legal assistance of a probate lawyer.

Transfer of Assets

Probate is only concerned with the assets included in the decedent’s estate at the time of his or her passing. There are a number of ways individuals can transfer assets to avoid probate. These tactics may limit the amount and value of property in the estate or may make it so that the decedent owns nothing at the time of death. For example, if the decedent owned property as joint tenants with the right of survivorship, the remaining owner automatically receives the asset upon the decedent’s passing. Other assets can be transferred through a beneficiary designation or a transfer on death deed or title. Another way to transfer assets is to put them in a trust so that the trust becomes the legal owner of the property instead of the individual.

Small Estate Affidavit

In Illinois, a small estate affidavit is often used when the aggregate value of the estate is less than $100,000 and no real estate is owned. To claim their inheritance, heirs complete an affidavit that provides the following information:

  • The decedent’s address, date of death and the fact that he or she owns certain property that the affiant stands to inherit
  • The affiant’s address
  • A list of the decedent’s known assets
  • The amount due to the decedent’s spouse and children, if any.
  • The value of the estate is less than $100,000 and it is not currently part of a probate case.

The affiant takes the affidavit to the entity holding the decedent’s property and collects it. This process should not be used when there are concerns about the legitimacy of the will.