Probate Affidavits

Also called a “small estate” affidavit, probate affidavits allow the heirs of a deceased person to collect the decedent’s property without having to open probate.   This is also sometimes called the small estate probate exemption.

There are two types of probate affidavits – personal property and real property.  Personal property is anything not real estate, real property is real estate.  In order to use a probate affidavit, the deceased person’s assets that would otherwise be subject to probate are limited to $75,000 in personal property and $100,000 in real property (less liens and encumbrances).  A note on this because not all assets are subject to probate.  Any assets passing subject to a beneficiary designation (life insurance, retirement accounts) are not considered “probate assets” and not considered when calculating these amounts.  Only those assets in the deceased person’s name that had no beneficiary designation are counted towards these small estate limits.

Personal property affidavits and real property affidavits have some different requirements.  One thing common to both types of a probate affidavits is that if there are multiple heirs, they must work together.   This isn’t a great option when there is discord among the heirs.

When collecting personal property, at least 30 days must have passed since the decedent’s passing before the personal property probate affidavit can be used.  In addition, no probate proceeding in any state can be pending, or if there was previously a probate, at least one year has passed since either the estate has been closed or the personal representative has been discharged.  This Affidavit does not have to be filed with the court, but instead should be presented to those persons or entities in possession of the decedent’s property.  In some situations, this Affidavit may also be used to collect wages owed to the decedent.  Learn more about personal property affidavits.

Collecting real property is a little trickier.  First, one needs to determine the value of the property to determine if a real property probate affidavit is an option.  The property is valued pursuant to the tax assessment rolls.  Depending on whether probate was ever opened (in any state), the date of valuation will either be the the date of the decedent’s death or the date the Affidavit is filed.  Second, the heirs must wait six months before a real property affidavit may be used.  A certified copy of the decedent’s death certificate must be attached to the affidavit.  This Affidavit must first be filed with the court in which County the property is located (and the filing fee paid).  Once the court approves the affidavit, a certified copy of the affidavit must be filed with the appropriate County Recorder.  Read more about real property affidavits.

Probate affidavits are an easy and cost effective way to transfer assets after a person has passed.   Call us today to discuss how Probate Affidavits can be used in your specific situation.