A small estate affidavit facilitates small property transfers and lets a surviving person avoid probate court after a deceased person’s death, saving them significant time and money.
Common Documents Needed Along with the Affidavit
- Required in Most Cases: Death Certificate (Certified Copy)
- Possible Additional Documents (depending on your state):
- Will (if the deceased person completed one)
- Debt information
- List of assets and valuations
- Documentation of heirs and beneficiaries
- Proof of identity (via a driver’s license or another government-issued document)
What Is a Small Estate Affidavit?
A small estate affidavit is a document containing a sworn statement giving a party or parties the legal right to claim the assets of someone who has died. It only applies when the decedent’s estate is of little value.
If the deceased person passes away without a will (“intestate”), a small estate affidavit lets the surviving party avoid probate court and distribute assets relatively simply.
The surviving party fills out a small estate affidavit after a person dies. It’s unlike a will, which the estate owner completes before they pass away.
What’s Considered a Small Estate?
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 dies without a will, so check your state’s requirements before you begin creating your affidavit.
Small estate claims only include personal property rather than real property such as houses or other real estate. They may include items with sentimental value to surviving heirs that aren’t overwhelmingly valuable.
When to Use a Small Estate Affidavit
Here are some instances when it makes sense to use a small estate affidavit:
- Small Estate Value: A small estate affidavit is useful when the value of a decedent’s assets falls below a certain threshold, as defined by state law. The threshold differs from state to state, but this form is for estates too small to justify the formal probate process.
- No Will: If the decedent didn’t leave a will, a small estate affidavit could be useful for distributing assets according to their state’s intestacy laws. Please note that the exact eligibility criteria and regulations for using a small estate affidavit in the absence of a will can vary, so you must refer to local laws.
- Minimal Debt: Because a small estate affidavit is relatively simple, it’s best to use it when the estate has minimal or no debt. The affidavit process doesn’t involve an in-depth examination of the estate that the regular probate process requires, so it’s impractical for estates with significant debts that the surviving person would need to settle.
- Waiting Period: Some states demand that the surviving beneficiaries wait a certain period before filing. The waiting period lets creditors come forward with claims, such as those for funeral expenses, utility bills, and credit card bills. It also lets family members gather the necessary documents and estate information. Once the waiting period passes, an affidavit form lets the family settle the estate without probate.
Benefits of a Small Estate Affidavit
- Faster than going through probate
- More cost-efficient
- Simplified legal process
- Quicker access to assets
Small Estate Affidavit Requirements by State
Each state has different requirements for a small estate affidavit:
- Value Limit: The value of a small estate may range from as low as $10,000 to over $150,000, depending on the jurisdiction. If the total value of all assets to be distributed is larger than the maximum value listed, you can’t use a small estate affidavit.
- Waiting Period: The family members or beneficiaries may have to endure a waiting period of varying length 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.
Explore the state-specific requirements below:
| State | Maximum Estate Value | Waiting Period Requirements | Non-transferrable Assets | Signing Requirements | Statute |
|---|---|---|---|---|---|
| Alabama | $34,611 (for 2023) | 30 days | Real property | Not mentioned in the statutes. | Ala. Code § 43-2-692 |
| Alaska | Determined by a formula if the value of the estate’s property is less than the liens or debts owed. | 30 days | Real property | Not mentioned in the statutes. | Alaska Stat. § 13.16.680 |
| Arizona | $100,000 (real property); $75,000 (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 | 40 days | Real property | Notary public recommended but not required. | Cal. Prob. Code § 13100 |
Process of Using a Small Estate Affidavit
Step 1 – Determine Eligibility
You must determine a decedent’s eligibility for a small estate affidavit by ensuring that:
- Their assets fall below the state maximum for a small estate.
- The appropriate waiting period has passed after the decedent died.
- Their assets are enough to cover any debt they have.
- They don’t have a will in place (or the will is small enough to be considered for the small estate affidavit process).
Step 2 – Gather Information and Documents
Gather essential information and documents to proceed with the small estate affidavit process. Some key documents you’ll need include the following:
- Death certificate: Use it to confirm when the decedent passed away. Verify their date and location of death.
- Affidavit form: Access an affidavit template so you can easily fill out all the information.
- Asset information: Acquire a record of the decedent’s assets. Ensure that you can cover any liabilities using their assets.
- Heir/beneficiary information: Document who will receive the decedent’s assets.
- Will: If the decedent wrote a will, obtain a copy to ensure the final affidavit doesn’t conflict.
Step 3 – Complete the Affidavit
Complete the affidavit form, including details about the will, assets, debts, and beneficiaries. Indicate how you’d like to distribute the assets, ensuring you respect the decedent’s wishes if they’ve communicated them in a will.
Clearly identify all beneficiaries. For example, while all the money in a decedent’s bank account may go to one family member, another family member may get the deceased person’s vehicle(s).
Step 4 – Sign and Seek Notarization
Sign the document to confirm that all statements you’ve made are true. If an attorney completes the document on your behalf, they may sign it instead. Seek notarization so a notary public can legitimize your signatures.
Depending on where you live, notarization may be optional. However, you should seek the authentication of a notary public, as it can prevent issues from arising with the document in the future.
Step 5 – File the Affidavit
File the affidavit form with the probate court in the county where the decedent was living when they died. Depending on your state’s processes, you may need to file the affidavit directly with the institutions that hold the assets, such as brokerage firms or banks.
Step 6 – Notify Creditors
Notify any known creditors of the decedent about the estate proceedings. If you don’t know who the creditors are, you may need to publish a notice in the local newspaper to inform potential creditors of the situation.
Step 7 – Wait for Asset Distribution
Once the appropriate institution receives your affidavit form, wait for them to accept and process it. Then, they will distribute assets directly to the creditors to whom the decedent owed money. If any assets remain, the institution will distribute them to the appointed beneficiaries.
Suppose the estate assets are insufficient to pay the debts of the decedent or the estate. In that case, an heir will not (except in rare situations such as fraudulent transfers) be responsible for paying those debts.
Affidavit of Heirship vs. Small Estate Affidavit
An affidavit of heirship authenticates the surviving heirs of a decedent. Families often use this document when distributing decedent assets, which primarily consist of real property (any building or land that would require a deed or title to be transferred). Real property will almost always exceed the maximum legal amount considered a small estate, so an affidavit of heirship will be necessary.
A small estate affidavit is used when one or more close relatives wish to claim the decedent’s property after an individual dies. The total value of the property must be below the maximum allowance by the state where this form is being filed. It’s important to note that a surviving beneficiary often files a small estate affidavit along with an affidavit of heirship.
Small Estate Affidavit Sample
Download a free small estate affidavit form in PDF or Word format:
You can use the same template for most states, but you will need customized small estate affidavit forms for some. Explore them below:
- Georgia: Word (.doc) or Adobe PDF
- Kentucky: Word (.doc) or Adobe PDF
- Wisconsin: Word (.doc) or Adobe PDF
