What is a Small Estate Affidavit?
Small estate affidavits are sworn legal documents that provide an alternative to formal probate. If a deceased person’s estate falls below a certain threshold, typically $100,000 or less, this option may become available.
Probate, an important process that ensures the fair distribution of a deceased person’s estate and the validity of a deceased person’s will, can be a costly and drawn-out process. Knowing what a small estate affidavit is, its qualifications and restrictions, and how it can be used can help you settle a deceased person’s estate more quickly and avoid the probate process.
What Are the Requirements for a Small Estate Affidavit?
The definition of a small estate varies depending on the state. Each state determines whether small estate affidavits are permitted, the maximum threshold value for the estate, the assets included when determining the estate’s value, the procedures to obtain the affidavit, and the waiting period after death.
Typically, a small estate affidavit is used when a decedent did not leave a will, but some states may allow its use in addition to a will.
For example, according to the California Code:
- The waiting period to file a small estate affidavit is 40 days.
- The probate process cannot have started.
- The executor of the estate has agreed to use a small estate affidavit to settle the estate.
- All of the decedent’s debts and expenses have been paid.
- Property value cannot exceed $184,500 for deaths on or after April 1, 2022. The limit for transferring real estate is $61,500.
The following types of assets are excluded when determining the property value:
- Any property that goes outright to the surviving spouse
- Real estate located outside of California
- Cars, boats, and mobile homes
- Property held in a living trust
- Property held in joint tenancy
- Assets and accounts that pass to named beneficiaries
- Jointly held bank accounts
What Information Do You Need to File a Small Estate Affidavit?
In many cases, you can obtain a small estate affidavit form on your local probate court website. The following information is required, per California Code, to complete a small estate affidavit:
- The decedent’s name
- The name and place of the decedent’s death
- A legal description of the real property
- The requestor’s relationship to the decedent
- The gross value of all real property in the decedent’s estate located in California
- A certified copy of the death certificate
- Proof of your identity, typically a government-issued photo ID
- Proof of ownership of the decedent’s property, including a copy of the will if it exists
In some states, a completed and notarized small estate affidavit and a death certificate are all that are needed to release assets to beneficiaries. In other states, approval from the probate court is necessary first.
Who Can Complete a Small Estate Affidavit Form?
Again, state-specific requirements may vary, but typically, only individuals related to or with a known relationship to a decedent can complete a small estate affidavit form, which includes:
- Spouse
- Domestic partner
- Children
- A minor child’s legal guardian
- Parent of a decedent
Probate can take months to years, depending on the size and complexity of the estate. A small estate affidavit can cut costs and time spent administering an estate. Unfortunately, the option of using a small estate affidavit is not available in all states, and the requirements are not consistent across states. In many states, small estate affidavits cannot be used to transfer real estate.
Before signing a small estate affidavit, consult with your estate attorney. The affidavit signer agrees to be personally liable for up to the estate’s value. This means that a creditor who demands a debt payment from an estate can hold the signer responsible for paying the debt.
Work with your attorney to create a comprehensive estate plan. Having a current will is an important first step. In many cases, establishing a trust and funding it with your estate property and assets can help bypass probate and allow you to more easily transfer your assets to your heirs than by exclusively using the probate process.
You can schedule a call with us or reach us directly at 855.631.3457 to learn more about how to best plan today to protect those most important to you.