Depending on state law, individuals may be able to transfer property shortly after a decedent's death to his beneficiaries.
A small estate affidavit is a form a beneficiary can use to transfer property in an estate to himself. The affidavit shortens the probate process or eliminates it altogether when the deceased has few or no assets, as determined by state law and the type of property involved.
The Standard Probate Process
During a typical probate process, a probate lawyer fills out several forms required by law within a pre-determined time limit. There may be a few court hearings in which a will is submitted or an estate's liabilities are accounted for. A lawyer may have to file notices, inventory lists and accounting documents. Fees are paid to the lawyer and to the executor of the estate. There may be additional fees, including court costs, administrative costs and appraiser's fees.
Purpose of the Small Estate Affidavit
If an estate is valued under a certain amount as determined by state law, it may be considered a small estate, which allows for a faster, less formal probate process. In Illinois, for example, a small estate affidavit can be used to transfer property to a decedent's beneficiaries if an estate's value is less than $100,000. Meanwhile, the California Probate Code sets the small estate limit at $150,000 and excludes certain assets from the valuation.
Completing the Affidavit
The beneficiary must provide information on the form that includes, but is not limited to:
- A will, if applicable
- Inventory and valuation of assets
- Information regarding the account or asset being transferred
- Date of death
- Copy of death certificate
The beneficiary can get a small estate affidavit form from the probate court in the county where the decedent died.
Finalizing the Affidavit
The affidavit must notarized. The beneficiary must swear that he is entitled to the property under the terms of the will -- or under the laws of intestacy if there is no will -- in the notary's presence.
While some states allow a beneficiary to submit the affidavit directly to the institution holding the asset, such as a bank, and avoid the probate process altogether, other states require the probate court's approval. Some states require the estate's executor to approve the asset transfer before the beneficiary can submit an affidavit to acquire it.
The affidavit generally cannot be used to transfer ownership of real estate.
- Nolo: Avoiding Probate: The Small Estate
- Nolo: Why Avoid Probate?
- WashingtonLawHelp.org: How to Claim the Personal Property of Someone Who Has Died: Affidavit Procedure for Small Estates
- Ford + Bergner LLP: Probate
- Cary A Lind, P.C.: Small Estate Affidavits
- Sacramento County Public Law Library: Affidavit for Collection of Personal Property