A small estate affidavit is a legal document that contains a sworn statement allowing someone to legally claim the assets of someone who has died. Small estate affidavits are used to avoid what’s known as the probate process, which can be long and costly.
An estate is only considered “small” if the deceased’s assets are valued below a certain amount, which differs from state to state. In addition, some states only allow the use of a small estate affidavit if the person died without a will, so be sure you check your state’s requirements below before you begin creating your affidavit.
What is a Small Estate Affidavit?
A small estate affidavit, also known as an affidavit for collection of personal property, is a legal document that allows a person to receive property belonging to a deceased individual. This document will help you take possession of assets that may rightfully belong to you upon the deceased’s death while avoiding a lengthy probate process.
Small Estate Affidavit Limits
In some states, real property and/or motor vehicles cannot be transferred using a small estate affidavit. In addition, all states have a limit on the total value of assets (maximum allowance). If the total value of all assets to be distributed is larger than the maximum value listed, then you cannot use a small estate affidavit.
| State | Non-transferrable Assets | Maximum Allowance |
|---|---|---|
| Alabama | Real property | $29,710 (for 2019) |
| Alaska | Real property | $100,000 (motor vehicles); $50,000 (personal property) |
| Arizona | - | $100,000 (real property); $75,000 (personal property) |
| Arkansas | - | $100,000 |
| California | Real property | $166,250 |
| Colorado | Real property | $69,000 (if the decedent died in 2019) |
| Connecticut | Real property | $40,000 |
| Delaware | Real property | $30,000 |
| District of Columbia | - | $40,000 |
| Florida | - | Typically $75,000, but varies by county |
What is Probate?
Probate is a legal procedure intended to make sure the bills of a deceased individual (“decedent”) have been paid, and the people entitled to inherit their assets — whether by will (“testate”) or without a last will and testament (“intestate”) — receive those assets.
The probate procedure can be time-consuming, and involves expenses for the court as well as the executor of the estate. These costs are deducted from the decedent’s assets, reducing what’s available to give surviving heirs.
It’s important to know exactly what probate is, and how the entire process affects small estates. Those with larger estates typically use a revocable living trust in order to manage their sizable assets.
Are small estates the same across the country?
No, state law varies on the definition of what qualifies as a “small estate.” The total amount of the deceased’s assets and property being distributed must not exceed a relatively low threshold — around $5,000 – $175,000. Sometimes, there are items (such as real estate, or “real property”) that aren’t included in that calculation which is determined on a state-by-state basis.
In an effort to streamline the probate procedure and reduce the costs for estates that don’t exceed that threshold, each state has its own procedures for processing a “small estate” with less court involvement, time, and money. A small estate affidavit form may be used in those situations.
How does small estate property distribution work?
Once notarized, signed, and approved by the local probate court, any individual or organization in possession of a decedent’s property must legally transfer ownership to you when presented with a court-approved small estate affidavit.
Note: While this form is designed to cover the vast majority of states and situations, there are various conditions, limits and rules which vary from state to state. Some of these state-specific guidelines are included in our form builder, while others are more specific and must be obtained from the probate clerk in the county where this form will be filed.
When Should You Use a Small Estate Affidavit?
Also known as an affidavit for collection of personal property, a small estate affidavit form are used primarily (but not exclusively) when the deceased individual has:
- no last will and testament to their name
- less than $5000 – $175,000 in assets to distribute (depending on the state).
A small estate affidavit helps quicken or eliminate the probate process — an event which often prolongs the pain of having lost someone close to you.
Difference Between Affidavit of Heirship and Small Estate Affidavit
An affidavit of heirship is used to authenticate the surviving heirs of a decedent. Additionally, families often use this affidavit when distributing decedent assets primarily consisting of real property (any building or land that would require a deed or title to be transferred). That’s because real property will almost always exceed the maximum legal amount that can be considered a small estate.
A small estate affidavit is used when an individual passes away and one or more close relative wishes to claim the decedent’s property. The total value of the property must be below the maximum allowance by the state where this form is being filed. Small estate claims may include items that have sentimental value to surviving heirs and aren’t overwhelmingly valuable.
It’s important to note that a small estate affidavit is often filed along with an affidavit of heirship.
How Do I Fill Out a Small Estate Affidavit?
Aside from including basic information, such as the name and address of you and the decedent, you must carry out the following when filling out a small estate affidavit:
- Confirm the date when the decedent passed away — The date of death must be verified, in addition to the city and state where the decedent passed away. This information can be found on their official death certificate.
- Attest whether the decedent died intestate or testate — Some states permit the use of this procedure only if there is no will, while others allow both. If there was a will, make sure you have a copy of it. Whoever (if anyone) is named as executor of that will is the person who should file this form.
- Indicate whether there are outstanding funeral expenses — If the decedent’s funeral expenses haven’t been paid in full, you must provide the amount owed and a description of the expenses.
- Provide information on any additional claims against the estate — In the event the decedent left behind any outstanding debts, the estate must settle those debts and the creditors must be paid in full, to the extent there are assets in the estate to satisfy such debts. The value of any remaining assets can be passed to the heirs identified in the affidavit afterwards.
- List any surviving heirs to the decedent — Heirs include close relatives and spouses that could rightfully claim ownership of the deceased’s assets and property.
- Outline the decedent’s personal property being distributed, if any — A thorough description of the personal property being distributed (excluding real property in certain states), and the total value of that property must be included in the small estate affidavit. Personal property would include anything other than real property, such as vehicles or general possessions like jewelry or clothing.
- Describe the decedent’s real property being distributed, if any — If you’re claiming a transfer of ownership of the decedent’s real property, you must provide a full description and dollar amount of said property. Real property means any house or land that would require a deed or title to be transferred. Not all states permit the transfer of real property through this form.
In the event the assets of the estate are insufficient to pay the debts of the decedent or the estate, an heir will not (except in rare situations such as fraudulent transfers) have any responsibility to pay those debts.
Sample Small Estate Affidavit
Download this MS Word sample small estate affidavit, or view a completed PDF version to see what this form looks like filled out. You can also click on the image to zoom in if you’d like to read any of the clauses we include in our free template.
Small Estate Affidavit
Small Estate Affidavit Laws by State
Before filing a small estate affidavit form with the local probate clerk’s office, claimants may be required to wait a certain minimum period of time in accordance with their state’s law. This typically ranges between 15 days and two months.
As an example of the differences that may exist from state to state, California permits the use of a small claims affidavit to transfer only personal property, and that the gross value of the decedent’s real and personal property being claimed cannot exceed $166,250 (excluding certain property).
In addition to state laws below, we’ve also created state-specific small estate affidavit templates that adhere to all the specific state laws that you can download and use for free.
The above dollar amount is periodically adjusted to reflect changes in the average urban consumer price index, as published by the US Bureau of Labor Statistics.
As a reference, the following are the various small estate laws for each state:
| State | Legal Code | State | Legal Code |
|---|---|---|---|
| Alabama | § 43-2-692(1) | Montana | Section 72-3-1101 to 72-3-1104 |
| Alaska | § 13.16.680 |
Nebraska | § 30-24,125 |
| Arizona | § 14-3971 |
Nevada | NRS 146.080 |
| Arkansas | § 28-41-101 |
New Hampshire | Section 553:32 |
| California | Section 13100 | New Jersey | Sections 3B:10-3 & 3B:10-4 |
| Colorado | C.R.S. 15-12-1201 | New Mexico | Section 45-3-1201 |
| Connecticut | Sec. 45a-273 | New York | § 1301 to § 1312 |
| Delaware | § 2306 | North Carolina | § 28A-25-1 to 28A-25-7 |
Blank Small Estate Affidavit Templates by State (PDF & Word)
For most states you can use the same small estate affidavit template, but for some you will need to use a customized form. Below we’ve included downloadable and fillable small affidavit forms that you can use for all the various states.
Download:
- All states except Georgia, Kentucky, New Hampshire, West Virginia, and Wisconsin: Word (.docx) or Adobe PDF
- Georgia: Word (.docx) or Adobe PDF
- Kentucky: Word (.docx) or Adobe PDF
- Wisconsin: Word (.docx) or Adobe PDF