What Is a Small Estate Affidavit?
A small estate affidavit is a sworn statement giving a party the legal right to claim assets after a loved one’s death. It only applies when the decedent’s estate is of little value and meets their state’s qualifications.
If the decedent didn’t have a last will (“intestate”), the surviving heir can fill out a small estate affidavit. This lets them bypass the probate process and distribute assets.
What Is Considered a Small Estate?
An estate is only considered “small” if the value of the deceased’s assets does not exceed the state maximum. In addition, some states only allow the use of a small estate affidavit if the person dies without a will. Check the state’s requirements before creating an affidavit to ensure eligibility.
Are Small Estate Affidavits Only for Personal Property?
In many states, a small estate affidavit only transfers personal property. However, some states allow you to use it to transfer real estate or land if the total value is below a certain limit and you follow established rules.
When to Use a Small Estate Affidavit
Use a small estate affidavit if your situation meets the following criteria:
- The estate is small. If the total value of the deceased person’s assets is below your state’s legal limit, this form can help you avoid full probate.
- There is no will. The affidavit can help transfer assets based on state intestacy laws if the person died without a will. Check your state’s specific rules before proceeding.
- There is little or no debt. A small estate affidavit works best when the estate has few or no outstanding debts. Properties with debt require further settlement claims and more complex proceedings.
- There is a waiting period. Some states mandate a waiting period before heirs can file an affidavit, giving creditors time to make claims and family members time to gather the necessary information.
How to Get a Small Estate Affidavit
Obtaining a small estate affidavit requires careful consideration of the eligibility requirements. It also involves many key steps, including gathering the information, completing the form, and having it notarized and filed. You can use the following steps to guide you through the process.
- Evaluate eligibility: Evaluate whether the desired estate meets the state value maximums and waiting period criteria. Also, ensure that there are no outstanding debts or conflicting wills.
- Gather information: Find and organize supporting documents and information such as the decedent’s death certificate, asset information, and list of heirs.
- Complete the form: Detail the distribution of each asset for each heir. If applicable, ensure you follow any instructions or wishes included in a will.
- Get it notarized: Have the writer sign it and seek notarization from a registered notary in your county and state to verify your document as a legally valid and sworn statement.
- File the affidavit: File the completed form with the institution holding the property, such as the bank or brokerage firm, to access the financial accounts or other personal property.
Notify any of the decedent’s creditors of estate proceedings to avoid disputes and ensure claims or debts get settled before filing.
Small Estate Affidavit Requirements by State
Each state has its own laws regarding the qualifications and limits of a small estate affidavit. View the table below for a summary of each state’s maximum value, waiting period, non-transferable assets, and signing requirements.
- Value limit: The value of a small estate may range from as low as $10,000 to over $150,000, depending on the jurisdiction. You can’t use a small estate affidavit if the total value exceeds the state’s maximum value.
- Waiting period: You may have to abide by a waiting period before filing.
- Non-transferrable assets: Some states don’t allow the transfer of specific asset types through the affidavit process.
- Signing/notarization requirements: Most states require notarization to confirm the signer’s identity and the legitimacy of their declarations.
| State | Maximum Estate Value | Waiting Period Requirements | Non-transferrable Assets | Signing Requirements | Statute |
|---|---|---|---|---|---|
| Alabama | $37,075 | 30 days | Real property | Not mentioned in the statutes. | Ala. Code § 43-2-692 |
| Alaska | $50,000 for personal property $100,000 for vehicle |
30 days | Real property | Not mentioned in the statutes. | Alaska Stat. § 13.16.680 |
| Arizona | $100,000 for real property $75,000 for personal property |
30 days for personal property; 6 months for real estate | - | Not mentioned in the statutes. | Ariz. Rev. Stat. § 14-3971 |
| Arkansas | $100,000 | 45 days | - | Local probate/circuit court clerk | Ark. Code § 28-41-101 |
| California | $184,500 $750,000 for primary residence |
40 days | Real property | Notary public recommended but not required. | Cal. Prob. Code § 13100 |
How to Fill Out a Small Estate Affidavit
Filling out a small estate affidavit requires careful preparation and attention. Gathering, recording, and evaluating the requirements, documents, and information ensures a valid and effective form. Use the following steps to create a small estate affidavit and acquire your inheritance.
1. Add the Filing Person’s Details
Start with the name and address of the party filing the affidavit. Also note their relationship to the decedent. In most cases, the decedent’s closest next of kin creates the affidavit. More complex situations or cases involving a will may require the help of an estate lawyer.
2. Include Decedent Information
Include the name of the person who passed, the date and location of death, and information about whether they had a valid will. Adding the state and county they lived in before passing helps determine the affidavit’s jurisdiction.
3. Detail Expenses and Claims
Identify whether funeral expenses for the decedent have been paid. Also, detail any other claims against the estate. Include any debts, liens, or legal claims, as well as the name of any creditors of the decedent.
4. Record Heir Information
List the name, address, and age of each potential heir. Also label their relationship to the decedent. Creating and referring to an affidavit of heirship can help determine rightful heirs, such as family members or spouses.
5. Describe the Assets
Include a detailed list of the personal property, real estate, and vehicles in the decedent’s estate. Note the addresses of any real estate and provide the make, model, and condition of any vehicles. Break down each item to show the scope of the estate and its value.
6. Determine Asset Values
Write down the monetary value of all assets in the deceased’s estate. Add each asset together to determine the total value. This total must be below your state’s maximum values for an effective small estate claim.
Small Estate Affidavit Sample
View our free small estate affidavit sample to see how to properly list the decedent’s assets, heirs, and other required details. Use it as a guide before creating your own. Download it in PDF or Word format.
This small estate affidavit is designed as a generic legal form intended to comply with the requirements of many states. We advise consulting with your state and local laws before filing.
Affidavit of Heirship vs. Small Estate Affidavit
Both an affidavit of heirship and a small estate affidavit apply after a relative’s passing. An affidavit of heirship simply identifies and validates the surviving heirs. On the other hand, a small estate affidavit communicates an heir’s intent to claim the inheritance of the decedent’s low-value estate.
The surviving heir often uses both of these documents together. They prove their right to the inheritance through the affidavit of heirship and claim the benefits of their inheritance through a small estate affidavit.
Skip Probate for Small Estates With Legal Templates
Avoid the costs, hassle, and time associated with the probate process by using a small estate affidavit when possible. Legal Templates has a lawyer-approved and printable small estate affidavit template that allows you to input your relevant information. Our tools help you create a simple, effective document that expedites property transfers and avoids probate.
Frequently Asked Questions
Where can I get a small estate affidavit form?
Legal Templates provides a fully customizable and lawyer-reviewed small estate affidavit form. You can also get a small estate affidavit form from the Register of Wills office in the county where the decedent lived.
Can I cash a check with a small estate affidavit?
Many states allow you to cash a check made out to the decedent using a small estate affidavit. The exact requirements depend on your state laws and may include waiting periods or verification processes.
How long does it take to get a small estate affidavit?
Getting a small estate affidavit can take a few days or weeks. The exact timeline varies depending on your location and the complexity of your situation. A small state affidavit works faster than the probate process, which typically takes several months.
Does a small estate affidavit need to be notarized?
Yes, a small estate affidavit typically requires notarization to make it legally valid. Notarizing the document makes it an official sworn statement and provides extra support during the legal process.
Does a small estate affidavit need to be filed with the court?
In most cases, a small estate affidavit doesn’t need to be filed with the court. Instead, provide this affidavit to the organization holding the transferred property, such as banks or state agencies. The exact requirements can vary according to your precise situation or state laws.
