B-123629, JUN. 15, 1955

B-123629: Jun 15, 1955

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FRIEDA WILKENING: REFERENCE IS MADE TO LETTERS OF RALPH T. MAY BE PAID TO YOU AS HALF- SISTER AND SOLE BENEFICIARY OF HIS ESTATE UNDER AN UNPROBATED WILL OF THE DECEDENT DATED MAY 5. THE FILE SHOWS THE DECEDENT IS SURVIVED BY SIX OTHER HALF-SISTERS AND HALF-BROTHERS. THAT BURIAL ALLOWANCE AND EXPENSES OF LAST ILLNESS HAVE BEEN PAID BY THE VETERANS ADMINISTRATION. A WILL IS INEFFECTUAL TO CONVEY TITLE UNTIL IT HAS BEEN DULY ADMITTED TO PROBATE (68 C.J. 876). A PAYMENT TO A BENEFICIARY UNDER AN UNPROBATED INSTRUMENT WHICH PURPORTS TO BE THE LAST WILL OF A DECEDENT WOULD NOT GIVE A CREDITOR A VALID ACQUITTANCE FROM CLAIMS OF PERSONS WHO MAY BE ENTITLED TO PAYMENT UNDER A LATER WILL OR UNDER STATUTES OF DESCENT AND DISTRIBUTION.

B-123629, JUN. 15, 1955

TO MRS. FRIEDA WILKENING:

REFERENCE IS MADE TO LETTERS OF RALPH T. SMITH, ATTORNEY AT LAW, TO THIS OFFICE, INQUIRING WHETHER THE PROCEEDS OF VETERANS PENSION CHECK NO. 44,129,769 DATED AUGUST 31, 1953, AND DRAWN TO THE ORDER OF FRED J. KELLER, NOW DECEASED, IN THE AMOUNT OF $96.75, MAY BE PAID TO YOU AS HALF- SISTER AND SOLE BENEFICIARY OF HIS ESTATE UNDER AN UNPROBATED WILL OF THE DECEDENT DATED MAY 5, 1952, UPON SUBMISSION TO THIS OFFICE OF AN AFFIDAVIT EXECUTED IN ACCORDANCE WITH THE PROVISIONS OF THE LAW OF ILLINOIS RELATIVE TO ADMINISTRATION OF SMALL ESTATES OF LESS THAN $1,000.

THE FILE SHOWS THE DECEDENT IS SURVIVED BY SIX OTHER HALF-SISTERS AND HALF-BROTHERS, THAT BURIAL ALLOWANCE AND EXPENSES OF LAST ILLNESS HAVE BEEN PAID BY THE VETERANS ADMINISTRATION, AND MR. SMITH'S LETTERS INDICATE THE CHECK REPRESENTS THE SOLE ASSET OF THE DECEDENT'S ESTATE.

AS A GENERAL RULE, A WILL IS INEFFECTUAL TO CONVEY TITLE UNTIL IT HAS BEEN DULY ADMITTED TO PROBATE (68 C.J. 876), AND A PAYMENT TO A BENEFICIARY UNDER AN UNPROBATED INSTRUMENT WHICH PURPORTS TO BE THE LAST WILL OF A DECEDENT WOULD NOT GIVE A CREDITOR A VALID ACQUITTANCE FROM CLAIMS OF PERSONS WHO MAY BE ENTITLED TO PAYMENT UNDER A LATER WILL OR UNDER STATUTES OF DESCENT AND DISTRIBUTION. MR. SMITH'S LETTERS INDICATE HOWEVER THAT HE BELIEVES THE GOVERNMENT COULD GET GOOD ACQUITTANCE FROM POSSIBLE CLAIMS OF OTHER HEIRS, ETC., UPON THERE BEING FURNISHED A SUITABLE AFFIDAVIT UNDER THE SMALL ESTATES LAW OF ILLINOIS, AND THAT SUCH PROCEDURE WOULD ELIMINATE THE COSTS OF ADMINISTRATION WHICH OTHERWISE WOULD EXCEED THE VALUE OF THE ESTATE. HIS LETTERS DO NOT QUOTE OR CITE THE PARTICULAR SECTION OF LAW INVOLVED. HOWEVER, CHAPTER 3, ARTICLE XXV, SECTION 478 OF SMITH-HURD ILLINOIS ANNOTATED STATUTES AUTHORIZES PAYMENT OR DELIVERY OF SMALL ESTATES OF DECEDENTS UPON AFFIDAVIT. THIS SECTION, IN SO FAR AS PERTINENT, PROVIDES:

"UPON RECEIVING AN AFFIDAVIT THAT A RESIDENT OF THIS STATE DIED LEAVING PERSONAL ESTATE NOT EXCEEDING ONE THOUSAND DOLLARS IN VALUE,THAT NO LETTERS ARE THEN OUTSTANDING ON THE ESTATE IN THIS STATE, THAT NO PETITION FOR LETTERS ON THE ESTATE IS PENDING IN THIS STATE, THAT ALL FUNERAL EXPENSES OF THE DECEDENT HAVE BEEN PAID, THAT THIRTY DAYS HAVE ELAPSED SINCE THE DEATH OF THE DECEDENT, AND THAT THE AFFIANT HAS KNOWLEDGE OF THE FACTS, ANY PERSON OR CORPORATION INDEBTED TO OR HOLDING PERSONAL ESTATE OF THE DECEDENT MAY PAY THE INDEBTEDNESS OR DELIVER THE PERSONAL ESTATE TO THE FOLLOWING PERSONS RESPECTIVELY: * * * (C) WHEN THE AFFIDAVIT ALSO STATES THAT THE DECEDENT DIES TESTATE, THAT HIS WILL WAS ADMITTED TO PROBATE IN THIS STATE, THAT NO PROCEEDINGS TO CONTEST THE WILL ARE PENDING, THAT AN AUTHENTICATED COPY OF THE WILL IS ATTACHED, THAT NO PERSON IS ENTITLED TO A SURVIVING SPOUSE'S OR CHILD'S AWARD UNDER THIS ACT, AND THAT THERE ARE NO CREDITORS OF THE DECEDENT, AND THE NAMES, AGES AND PLACES OF RESIDENCE OF THE HEIRS OF THE DECEDENT AND OF THE LEGATEES UNDER THE WILL, TO EACH LEGATEE THAT PORTION OF THE ESTATE TO WHICH HE IS ENTITLED UNDER THE WILL. IF NINE MONTHS HAVE NOT ELAPSED SINCE THE WILL WAS ADMITTED TO PROBATE IN THIS STATE THE AFFIDAVIT SHALL BE ACCOMPANIED BY THE WRITTEN CONSENT OF ALL THE DECEDENT'S HEIRS.

"* * * UPON THE PAYMENT, DELIVERY, TRANSFER, OR ISSUANCE PURSUANT TO THE AFFIDAVIT, THE PERSON OR CORPORATION IS RELEASED TO THE SAME EXTENT AS IF THE PAYMENT, DELIVERY, TRANSFER, OR ISSUANCE HAD BEEN MADE TO THE LEGALLY QUALIFIED EXECUTOR OR ADMINISTRATOR OF THE DECEDENT AND IS NOT REQUIRED TO SEE TO THE APPLICATION OR DISPOSITION OF THE PROPERTY, BUT THE PERSON TO WHOM THE PAYMENT, DELIVERY, TRANSFER OR ISSUANCE IS MADE IS ANSWERABLE THEREFOR TO ANY PERSON HAVING A PRIOR RIGHT. * * *"

IT WILL BE NOTED THAT THE STATUTE REQUIRES THE WILL TO BE PROBATED, EVEN THOUGH AN EXECUTOR NEED NOT BE APPOINTED, AND IF NINE MONTHS HAVE NOT ELAPSED SINCE THE WILL WAS PROBATED, THAT THE AFFIDAVIT BE ACCOMPANIED BY THE WRITTEN CONSENT OF ALL THE DECEDENT'S HEIRS. IN THIS CONNECTION, YOUR ATTENTION IS ALSO INVITED TO THE ANNOTATION TO THE SECTION QUOTED ABOVE WHICH APPEARS ON PAGES 299 AND 300 OF ILLINOIS PROBATE ACT ANNOTATED, PUBLISHED UNDER THE DIRECTION OF THE ILLINOIS STATE BAR ASSOCIATION, INDICATING THAT COMPLIANCE WITH THE STATUTORY REQUIREMENTS MAY BE ACCOMPLISHED WITHOUT THE EXPENSE OF ADMINISTRATION.

ACCORDINGLY, ASSUMING THIS IS THE STATUTE TO WHICH MR. SMITH REFERS, THIS OFFICE WILL GIVE CONSIDERATION TO PAYMENT TO YOU OF THE PROCEEDS OF THE CHECK UPON RECEIPT OF SUCH AFFIDAVIT SHOWING PROBATE OF THE WILL AND SUCH OTHER INFORMATION AS IS REQUIRED BY THE STATUTE. IF THE AFFIDAVIT IS SUBMITTED PRIOR TO NINE MONTHS FROM THE TIME THE WILL IS PROBATED, CONSENT OF ALL OTHER HEIRS TO PAYMENT SHOULD ACCOMPANY THE AFFIDAVIT. HOWEVER, IF MORE THAN NINE MONTHS ARE PERMITTED TO ELAPSE BETWEEN THE PROBATE OF THE WILL AND THE AFFIDAVIT, SUCH CONSENT WILL NOT BE NECESSARY.

IF MR. SMITH HAS REFERENCE TO SOME OTHER PROVISION OF THE ILLINOIS STATUTES AND WILL FURNISH A COPY THEREOF OR CITATION TO SUCH STATUTE, ACCOMPANIED BY AN AFFIDAVIT AUTHORIZED THEREIN, WE, OF ..END :