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What Is a Small Estate Affidavit?

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What Is a Small Estate Affidavit?

A small estate affidavit is a legal document that allows property from a will to be transferred without it having to go through the probate process. This can be advantageous for the deceased person’s beneficiaries, as the probate process can sometimes be costly and time-consuming. In many cases, an estate might be too small to pass through the probate process.

A small estate affidavit form will generally list the parties involved, the property to be transferred, and other important information. The affidavit is usually sent to the party or entity that is holding the property, and acts similar to an order requiring them to release the property at the specified time. Some states also require a copy to be sent to taxing agencies.

When Can a Small Estate Affidavit Be Used?

By definition, small estate affidavits are used when the deceased person’s property is small enough that it does not need to be managed through formal, traditional probate process. In most states, there is a “ceiling” or maximum amount that is used to define a small estate. For instance, most states list the maximum estate value at around $100,000 or $150,000 (this may differ from state to state). Any estate that is worth more than this amount will have to go through probate.

When Can Small Estate Affidavits NOT Be Used?

In most states, small estate affidavits cannot be used if:

  • Regular probate proceedings have already begun
  • The estate is over the value limit for small estates
  • Transfers of real estate are involved (however, many states are now implementing special affidavits for transfers of real estate)

Thus, small estate affidavits are one way of avoiding probate. The affidavit should be clearly written and needs to follow all the guidelines and requirements set forth by state law. While this is usually relatively straight-forward, it can sometimes be challenging when it comes to valuating the estate’s worth (it usually requires the assistance of a professional).

Do I Need a Lawyer for Help with Small Estate Affidavits?

Small estate affidavits are quickly becoming more popular in each state. Also, the scope of what can be transferred through an affidavit is expanding as well. You may wish to hire a qualified estate lawyer if you need help drafting, reviewing, or enforcing a small estate affidavit. Your attorney can review the document if you need help analyzing specific issues. In addition, if any legal issues come up with regards to the affidavit (for instance, if the property holder will not transfer the item), you may wish to hire a lawyer for representation if you need to go to court.

Photo of page author Jose Rivera

, LegalMatch Legal Writer

Last Modified: 08-25-2014 06:12 PM PDT

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