When a person dies with a small estate, beneficiaries and heirs can claim assets without having to go through probate.
Published July 20, 2020|5 min read
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A small estate affidavit is a sworn written statement that authorizes someone to claim a decedent’s assets outside of the formal probate process.
After someone passes away, their assets become part of their estate, and a court process called probate is used to prove the validity of the will or determine heirs if there isn’t a will. For small estates that are valued less than a certain dollar amount, a simplified process can be used to avoid formal probate proceedings, which can save loved ones and heirs time and money.
To claim the decedent’s assets, a relative or heir can complete a small estate affidavit and present it to whomever holds the asset, like a bank or credit union. Some states require the affidavit to be filed in court first. You can often get a small estate affidavit form from the probate courts and fill it out. It may go by a different name in your state, like voluntary administration or affidavit in lieu of administration.
A small estate affidavit is just a written legal document — you can get a small estate affidavit from the county clerk’s office or have an attorney prepare one
Administering the estate with an affidavit takes the place of formal probate
Estates must be valued less than a certain amount to qualify for the use of the small estate affidavit
Notarizing a small estate affidavit may not be required by your state, but it is still a good idea to do it
Using a small estate affidavit is limited to estates that are “small” — worth less than a certain value. Each state sets its own value limit and determines what assets count towards it. Estates are often limited to the decedent’s personal property, as opposed to real property, which is a building or land. These assets cannot typically be released to beneficiaries and heirs through the small estate affidavit process, but it depends on the state.
Before you can get a small estate affidavit, you need to make sure that it is legally possible. You can do this by answering the following questions:
Does the deceased person’s estate qualify?
Was there a will?
Has enough time passed?
Every state sets different rules about what qualifies as a small estate, which is defined by its dollar value. The collection of the decedent’s assets may need to be worth less than $50,000 to be considered small or may be able to be worth as much as $150,000, depending on the state law and what assets are counted. Generally, only probate assets are counted.
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Personal property, like tangible belongings and bank and brokerage accounts without a proper beneficiary designation (more on that next) are counted toward the small estate value. Jointly owned assets on the other hand are not; they are considered exempt property because they can be received outside of probate. Other nonprobate assets that you typically don't have to count are those with rights of survivorship or beneficiary designations like a life insurance policy, payable-on-death accounts, and vehicles or real estate with a transfer-on-death deed (not allowed in every state).
A primary residence may be exempt property, but oftentimes owning land or real estate —real property — would disqualify an estate from being considered small. (However, your state may have other simplified procedures for distributing real property.)
In some states, a small estate affidavit can only be used when the decedent died intestate (without a will), but in others the affidavit process is available even if the decedent had a valid last will and testament.
If there is a will, you may file it with the appropriate county clerk, but do not file for probate proceeding if you wish to use the affidavit . Administering the estate with an affidavit takes the place of formal probate, so the affidavit cannot be used if someone has already initiated probate as by petitioning the court to act as personal administrator. (See also: Does a will have to be probated?)
If the decedent died without a will, the affiant, or person who uses the affidavit, may be limited to the surviving spouse or heirs.
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Whoever intends to use a small estate affidavit may be required by state law to wait until a certain amount of time has passed since the decedent’s death, which can be as long as two months.
A small estate affidavit is just a written legal document. The probate court (which may be called surrogate court or superior court in your area) often provides a small estate affidavit form that anyone can complete on their own. If they don’t, you can ask an estate planning attorney to help prepare one. If you want to claim the deceased person’s bank account, the financial institution may also have an affidavit form that you use to claim their account there. These forms are limited to releasing assets only from that specific institution.
Related article: more on how to avoid probate.
The small estate affidavit form requires basic information: names and addresses of the decedent and their descendants, including immediate family and relatives.
You will also need to list the assets you wish to claim, along with their value and details, like the bank account number, or motor vehicle number. You may also be required to disclose any debts and funeral expenses.
The exact forms you need may vary by state but most people can expect to provide
A copy of the death certificate
The original will or copy of a will (if it exists)
Documentation of the deceased’s assets (proof they owned them, like a stock certificate or bank statement)
Your driver’s license or other proof of identity
What happens next in the affidavit process depends on the procedures in your state. In some states, you can simply bring the completed affidavit and the death certificate to whomever holds the assets and they will release them. But in other states, you need to first get approval from probate court, which may issue a more formal set of documents that you’ll use to claim the decedent’s assets. You can file the affidavit in person, by mail, or even online if your county allows, and you'll likely have to pay a fee.
These papers or certificates from the court authorize the person filing the affidavit to settle the estate and might expire after a certain period of time. You may be able to update the forms after they expire, but for a fee.
The affiant basically serves as a kind of informal executor, distributing assets to the proper beneficiary and in some cases even making sure that debts and funeral expenses are paid first.
Learn more about what an executor does.
Many states require notarization of the small estate affidavit for it to be valid. But even if it isn’t required in your state you should, since the financial institutions that hold the assets may require notarized proof that you can claim the assets.
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