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 lengthy and costly.
An estate is only considered “small” if the deceased’s assets are valued below a certain amount, differing 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 collecting 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 this document type. 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, 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 and the executor of the estate. These costs are deducted from the decedent’s assets, reducing what’s available to give to 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 to manage their sizable assets.
Are small estates the same across the country?
No, state law varies on what qualifies as a “small estate.” The total amount of the deceased’s assets and the property being distributed must not exceed around $5,000 – $175,000. Sometimes, items (such as real estate or “real property”) aren’t included in that calculation, which is determined on a state-by-state basis.
To streamline the probate procedure and reduce the costs for estates that don’t exceed the threshold, each state has guidelines 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 possessing 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, this form is 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 that 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 the real property will almost always exceed the maximum legal amount 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 with 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 — You must verify the date of death and the city and state where the decedent passed away. You can find this information 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 the 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 costs.
- Provide information on any additional claims against the estate — If 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 obligations. You can pass the value of any remaining assets to the heirs identified in the affidavit afterward.
- 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. Private property would consist of 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 complete 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 estate assets 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
You can download our free template for Small Estate Affidavit in PDF or Word format, print it, and fill it out independently.
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 in accordance with their state’s law. This typically ranges between 15 days and two months.
As an example of the differences between states, California permits a small claims affidavit to transfer only personal property. The gross value of the decedent’s real and personal property being claimed cannot exceed $166,250 (excluding specific property).
In addition to the 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 you will need to use a customized form for some. 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