Claiming Property With Small Estate Affidavits

In many states, if an estate is small enough, inheritors won't have to go to probate court at all.

By Mary Randolph , J.D. UC Berkeley School of Law
Updated by Jennie Lin , Attorney Harvard Law School

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In many states, if an estate is small enough, the people who inherit property won't have to go to probate court. Instead, they can simply prepare and sign a brief affidavit (sworn statement) saying that they are entitled to inherit a particular item of property. This procedure is called a small estate affidavit, and you can use it to skip probate. Instead of going through an entire probate proceeding, which can take many months or even years, you can simply create a small estate affidavit, get it notarized, and present it to the person or institution (such as a bank) holding the asset.

• Who Can Use a Small Estate Affidavit?
• How Does an Affidavit for Small Estates Work?
• How Do You Get a Small Estate Affidavit Form?
• Do Small Estate Affidavits Need to Be Notarized?
• Do You Need a Lawyer to Look Over Your Small Estate Affidavit?
• What's Included in a Small Estate Affidavit?
• Example of a Small Estate Affidavit
• How Much Does It Cost to Use a Small Estate Affidavit?
• More Help With Small Estate Affidavits

Who Can Use a Small Estate Affidavit?

If you're looking for a simple way to get a deceased person's property and you qualify to use a small estate affidavit, you should use it. The process is quick and relatively painless. For example, using a small estate affidavit for a bank account can be as simple as filling out a form and giving it to the bank.

There are restrictions, however, on who can use this method:

• Small estate affidavits are available only in some states (to check a state, see Small Estate Probate Shortcuts).
• The property left by the deceased person must be worth less than the ceiling set by state law. These limits vary widely.
• In most states, the procedure can't be used to transfer real estate. A handful of states, however, do provide a special affidavit procedure for real estate. But because real estate transfers are always a matter of public record, the affidavit must be filed in court or with a public agency.
• In most states, inheritors cannot use the affidavit procedure if regular probate court proceedings have already begun.

How Does an Affidavit for Small Estates Work?

The inheritors of the property initiate the process by creating a small estate affidavit. Usually, there is a short waiting period—commonly, 30 or 45 days after the death—before anyone is allowed to collect the property. Still, the timeline for a small estate affidavit is much shorter than for full probate.

To get the property, the inheritors present their affidavits and a copy of the death certificate to the person or institution who has possession of the property. Some institutions may also insist on seeing a copy of the will, if any. That person or institution is allowed, by law, to turn over the property upon receiving the affidavit.

EXAMPLE: In his will, Perry leaves $20,000 to Alice. A month after Perry dies, Alice goes to his bank and fills out the affidavit form she picks up there, swearing that she is entitled to the money and that the estate qualifies for the state's small estate affidavit procedure. The bank, after looking at the affidavit, a copy of Perry's death certificate, and possibly the will, transfers $20,000 from Perry's account to her.

In most states, an affidavit needs to be given only to the entity that is holding the property. But some states now require a copy to be sent to the state taxing agency, in case any state taxes are due. If the deceased person received any public benefits, another copy may need to go to the Health or Welfare Department; if there's money left in the estate, the government will want to be reimbursed for the aid it provided.

How Do You Get a Small Estate Affidavit Form?

Banks, other financial institutions, and state motor vehicles agencies, which deal with this sort of transfer all the time, may have their own affidavit forms for people to fill out. Many states or counties also offer forms on their websites. Otherwise, the inheritors may have to put together their own, making sure it covers all the conditions the state statute requires.

Do Small Estate Affidavits Need to Be Notarized?

The affidavit may need to be notarized—that is, signed in front of a notary public—or it may be enough for it to include a statement to the effect that it is being signed "under penalty of perjury." Check the form for your state, county, or bank.

Do You Need a Lawyer to Look Over Your Small Estate Affidavit?

If you don't know whether you are entitled to property, if other people are challenging your right to the property, or if you have other questions about your inheritance, it's a good idea to consult with a probate lawyer. However, small estate affidavits are meant to offer a simple alternative to probate, and many people are able to use them to claim property quickly and easily, and without having to involve a probate lawyer.

What's Included in a Small Estate Affidavit?

The precise contents of your small estate affidavit will be determined by the laws of your state. But typically, small estate affidavits state include statements to the effect that:

• The value of the estate does not exceed the limit set by state law. Some states calculate this based on the value of your entire estate, while others use the value of your "probate estate" (that is, the value only of property that would pass through probate).
• The required waiting period has elapsed since the death.
• No probate court proceedings have been initiated.
• The inheritor is entitled to the property. Although it's not always required by statute, it's a good idea for the inheritor to explain the basis of the claim—for example, because the inheritor was given the property under the deceased person's will, or if there was no will, that the person inherits the property under state intestate succession law.

Example of a Small Estate Affidavit

Small estate affidavits look different in different states. But here is a sample small estate affidavit for Minnesota:

AFFIDAVIT FOR COLLECTION OF PERSONAL PROPERTY
Minnesota Statutes § 524.3-1201

Estate of: ____________________________________, Decedent.

STATE OF MINNESOTA
COUNTY OF ______________

1. 1. My name is: ___________________________.
   2. My address is: _________________________.
   3. Decedent died on ______________________. A certified copy of Decedent's death certificate is attached to this Affidavit.
   4. I am the successor of the Decedent and I have legal standing to complete this form because: ____________________________________________________________________.
   5. The value of the probate estate, determined as of the date of death, wherever located, involving any contents of a safe deposit box, less liens and encumbrances, does not exceed $75,000.
   6. Thirty days have elapsed since the death of the Decedent, or in the event the property to be delivered is the contents of a safe deposit box, 30 days have elapsed since the filing of an inventory of the contents of said box.
   7. No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction.
   8. I, as claiming successor, am entitled to payment or delivery of the following described property: _____________________________________________________________________.
   [Date, signature, notarization]

   How Much Does It Cost to Use a Small Estate Affidavit?

   Because the small estate affidavit is not filed with probate court, there are no filing fees. The costs associated with a small estate affidavit are minimal. You will likely have to pay a notary to get your affidavit notarized, which usually costs around $15-20.

   More Help With Small Estate Affidavits

   Most banks, brokers, and other entities your inheritors will likely deal with are quite familiar with the affidavit process. But if one refuses to cooperate, just showing an unhelpful clerk a copy of the statute (readily available online or at a public law library) can melt away the opposition. If that doesn't get results, chances are a phone call or letter from a local lawyer will. And, as a last resort, the inheritor can go to court—small claims court, if possible—and demand that the assets be turned over.

   Help for California readers. For more details on using small estate procedures in California, see How to Probate an Estate in California, by Lisa Fialco (Nolo).