A small estate affidavit is a legal document that allows for the legal transfer of assets and property to be transferred to a decedent’s legal heirs without having to go through a lengthy and sometimes complex probate process after the decedent’s death.
Who Can Use a Small Estate Affidavit?
If you’re looking for a simple way to get a deceased person’s property and you qualify to use a small estate affidavit, you should use it. The process is quick and relatively painless. For example, using a small estate affidavit for a bank account can be as simple as filling out a form and giving it to the bank.
There are restrictions, however, on who can use this method:
• Small estate affidavits are available only in some states (to check a state, see Small Estate Probate Shortcuts).
• The property left by the deceased person must be worth less than the ceiling set by state law. These limits vary widely.
• In most states, the procedure can’t be used to transfer real estate. A handful of states, however, do provide a special affidavit procedure for real estate. But because real estate transfers are always a matter of public record, the affidavit must be filed in court or with a public agency.
• In most states, inheritors cannot use the affidavit procedure if regular probate court proceedings have already begun.
How Does an Affidavit for Small Estates Work?
The inheritors of the property initiate the process by creating a small estate affidavit. Usually, there is a short waiting period—commonly, 30 or 45 days after the death—before anyone is allowed to collect the property. Still, the timeline for a small estate affidavit is much shorter than for full probate.
To get the property, the inheritors present their affidavits and a copy of the death certificate to the person or institution who has possession of the property. Some institutions may also insist on seeing a copy of the will, if any. That person or institution is allowed, by law, to turn over the property upon receiving the affidavit.
Example: In his will, Perry leaves $20,000 to Alice. A month after Perry dies, Alice goes to his bank and fills out the affidavit form she picks up there, swearing that she is entitled to the money and that the estate qualifies for the state’s small estate affidavit procedure. The bank, after looking at the affidavit, a copy of Perry’s death certificate, and possibly the will, transfers $20,000 from Perry’s account to her.
In most states, an affidavit needs to be given only to the entity that is holding the property. But some states now require a copy to be sent to the state taxing agency, in case any state taxes are due. If the deceased person received any public benefits, another copy may need to go to the Health or Welfare Department; if there’s money left in the estate, the government will want to be reimbursed for the aid it provided.
How Do You Get a Small Estate Affidavit Form?
Banks, other financial institutions, and state motor vehicles agencies, which deal with this sort of transfer all the time, may have their own affidavit forms for people to fill out. Many states or counties also offer forms on their websites. Otherwise, the inheritors may have to put together their own, making sure it covers all the conditions the state statute requires.
Do Small Estate Affidavits Need to Be Notarized?
The affidavit may need to be notarized—that is, signed in front of a notary public or it may be enough for it to include a statement to the effect that it is being signed “under penalty of perjury.” Check the form for your state, county, or bank.
Do You Need a Lawyer to Look Over Your Small Estate Affidavit?
If you don’t know whether you are entitled to property, if other people are challenging your right to the property, or if you have other questions about your inheritance, it’s a good idea to consult with a probate lawyer. However, small estate affidavits are meant to offer a simple alternative to probate, and many people are able to use them to claim property quickly and easily, and without having to involve a probate lawyer.
What’s Included in a Small Estate Affidavit?
The precise contents of your small estate affidavit will be determined by the laws of your state. But typically, small estate affidavits state include statements to the effect that:
• The value of the probate estate does not exceed the limit set by state law.
• The required waiting period has elapsed since the death.
• No probate court proceedings have been initiated.
• The inheritor is entitled to the property. Although it’s not always required by statute, it’s a good idea for the inheritor to explain the basis of the claim—for example, because the inheritor was given the property under the deceased person’s will, or if there was no will, that the person inherits the property under state intestate succession law.
Claiming Property with a Simple (Small Estate) Affidavit
Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset.
The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less. An affidavit may also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if value of estate subject to probate, excluding the value of the vehicles, is $100,000 or less. There is a 30-day waiting period.
Simplified Probate Procedures
Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.
You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement. and provided them with a closing statement.
Small Estate Affidavit Process
Fulfill the Waiting Period
By state law, you are required to wait until a certain amount of time has passed since the decedent’s death before initiating the process of using a small estate affidavit. This period is most often 30 days, but as with other requirements, this varies from one state to another. Some have no statute regarding a waiting period at all; Colorado and Oklahoma require just 10 days, while Virginia requires 60 and Louisiana 90 days for immovable property. Once you’ve waited the required amount of time, you can begin the process.
Fill Out a Small Estate Affidavit
First, calculate the value of the estate and gather all the documents you need. When you’ve got everything in hand, fill out the small estate affidavit. Then you may be required to contact all family members, other heirs, or anyone who has a legal right or claim to a portion of the estate. If this requirement applies to you, you’ll need to do so via certified mail with a return receipt, and keep those receipts so you have a record of having contacted the other individuals. Check with the court to see whether this step is required.
Where Do I Go To Get A Small Estate Affidavit?
You can find online affidavit forms for small estates that you can download and fill out. They’re available for every state. You can also obtain the form you need by visiting a probate court and filling it out there. Or you can contact your local circuit county court’s clerk and visit their office.
Another option is to schedule an appointment with an attorney and retain their legal services if it’s too overwhelming to handle. Be aware, however, that you may be asked to pay attorney’s fees.
File Documents with the Probate Office
Once you’ve completed these steps, it’s time to file your documents with the probate office, together with any filing fee. The clerk will typically take five to 15 days to decide whether to accept or reject your affidavit. If it’s accepted, the assets will be transferred, completing the process.
When applying for a small estate affidavit, you’ll typically be asked to present:
• A certified copy of the death certificate with information such as the time and date of death, and the deceased’s former address. You can typically request a copy of the death certificate from the health department that has jurisdiction over the area where the person died. You can have this mailed to you.
• Material confirming your own identity and mailing address. You can use your driver’s license, passport, or another legal form of identification.
• Certified documentation that details the deceased person’s assets, proving ownership and detailing their fair market value. Round up copies of any statements from bank accounts, account numbers, stock certificates, vehicle registrations with VIN numbers, real estate deeds, and documents showing the valuation of other personal property.
• Certified copies and details of any unpaid debts, claims, and liens. You’ll have to pay these debts and claims before you make any disbursements from the estate.
• Receipts for all funeral expenses should be provided to show what you paid for them and provide documentation for reimbursement.
• A list of the names and addresses of the surviving spouse and minor children (the decedent’s heirs). And if there are any disputes or potential conflicts concerning who should inherit various items that are part of the decedent’s estate, you’ll have to testify about your knowledge of them.
• A will, if there is one, along with any codicils.
What Happens After I File?
What happens after you file for the small estate affidavit depends on the state. In some states, you can complete the affidavit and death certificate, and the assets will be released to you. In other states, however, you may need approval from the probate court before you file for an affidavit, and you may have to pay a fee. Again, you’ll need to pay the decedent’s bills before you pay anyone else. This includes credit card debt, if there is any. If you don’t pay it, the credit card company may file a lawsuit for reimbursement.
When Can Small Estate Affidavits NOT Be Used?
There are a number of situations in which a small estate affidavit may not be used. For instance, a small estate affidavit may not be used if standard probate proceedings have already started. Small estate affidavits can also not be used when the value of the estate exceeds the limits that define a small estate.
Although many states are now beginning to implement special small estate affidavits for transfers of real property, not every state allows for individuals to receive real estate without going through the probate process first. Some states may even exclude registered watercraft (e.g., boats or jet skis), motor vehicles, and out of state property.
In contrast, some common non-probate assets that may be eligible for transfer under a small estate affidavit include trust assets, retirement benefits, life insurance, jointly owned properties, and assets held in a payable on death bank account.
Additionally, a person also may not be able to use a small estate affidavit if they do not meet the will requirements enacted in their state and/or if they do not wait for the requisite amount of time to pass before they file the affidavit.
Do I Need a Lawyer for Help with Small Estate Affidavits?
Small estate affidavits are becoming increasingly popular legal documents to use when attempting to bypass the probate process. In fact, the use of these affidavits has become so widespread in many states that the scope of the items that can be transferred is starting to expand as well.
As previously mentioned, however, each state has different laws and requirements that may affect the types of property that can be transferred under a small estate affidavit. Thus, to find out whether you are eligible to claim property through a small estate affidavit, you should consider contacting a local estate planning lawyer for further advice.
An experienced estate planning lawyer will be able to assist you in completing and filing the affidavit, as well as can guide you through the necessary steps. Your lawyer can also answer any specific questions you may have about a small estate affidavit and can help you file a claim should any disputes arise in connection with your affidavit (e.g., if a property owner refuses to transfer certain assets or property).
In addition, your lawyer can provide representation if you need to attend a court hearing and can fix any errors that may be corrected in the event that your affidavit is denied.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
