When an individual passes away, their estate (e.g., property, assets, and personal belongings) gets distributed to their named beneficiaries, such as heirs, devisees in a will, and various other parties. How an estate is actually distributed is typically defined in the provisions of a will or trust document. The estate property will then literally be distributed through a probate proceeding.
Some estates, however, take a longer time to settle than others due in part to the size and complexity of a deceased individual’s estate. Other times, there may be disputes over how property is distributed and who receives what property. This can cause the probate process to extend much further than was ever intended.
In order to speed up this process, the law created a procedure to oversee property distribution in connection with smaller estates. Today, most jurisdictions now offer the option of what is known as small estate administration. An individual who qualifies for small estate administration can initiate the process by filling out a small estate affidavit.
A small estate affidavit is a type of legal document that authorizes the transfer of property and/or assets from a will to specific individuals without them having to go through the probate process to receive it. This can be very beneficial for a deceased testator’s beneficiaries since the probate process is often time-consuming and can be fairly costly.
In general, small estate affidavit forms will typically require the individual completing it to list the interested parties, the descriptions and values of the property to be transferred, information about the deceased, and various other items mandated by state law. It should also be noted that only certain parties will be permitted to file a small estate affidavit (e.g., heirs, spouses, domestic partners, children, etc.).
Once the form is completed, the individual will need to file it with the court clerk and then all they need to do is wait for it to be approved or denied by the court clerk. Some jurisdictions may also require a court to oversee such matters.
Whether a beneficiary can claim assets by filing a small estate affidavit will depend on the laws of a particular state. However, it is not uncommon to find that an estate is too small to pass through the probate process. The standard value for what may be considered a small estate ranges from less than $50,000 to all the way up to $150,000 in some states. Also, some states require that the deceased died intestate (i.e., without a will).
Thus, if you need help determining whether you are eligible to file a small estate affidavit or have any questions about small estate affidavits in general, you should speak to an estate planning lawyer in your area for further advice.
When Can a Small Estate Affidavit Be Used?
As previously mentioned, whether an individual can use a small estate affidavit will depend on the laws of their particular state. By definition, small estate affidavits are typically used when a deceased individual’s property is low enough in value that it does not need to be distributed through the formal probate process.
In most states, there is a ceiling or maximum amount that is used to indicate when an estate may qualify as a small estate (e.g., less than $50,000 to up to $150,000). This means that any estates that do not meet the requisite parameters for small estates will need to go through the probate process.
Once an individual determines whether a decedent’s estate qualifies as a small estate, they should then find out whether the deceased had a last will and testament. As discussed above, some states may require that the decedent had a will, whereas others will only allow a small estate affidavit to be used if the decedent died intestate.
If at this point the individual is still eligible to file a small estate affidavit, they should review their state’s laws to see if enough time has passed to use the affidavit. For instance, some states may require that a certain amount of time pass before a small estate affidavit can be used, which can be as long as a two-month waiting period or no waiting period at all (though the latter is rare).
One final factor that can be used to determine whether a person will be able to submit a small estate affidavit is the market value of the property at the time of the decedent’s death. For example, in states that require individuals to use the market value of the property at the time of a decedent’s death, this can have an effect on the total value of the estate and thus an individual may be barred from using a small estate affidavit.
On the other hand, if the individual resides in a state where the law says to subtract the amount still owed on the property at the time of a decedent’s death, then this can assist them in qualifying for small estate administration because it is subtracting a percentage of value from the total estate.
When Can Small Estate Affidavits NOT Be Used?
There are a number of situations in which a small estate affidavit may not be used. For instance, a small estate affidavit may not be used if standard probate proceedings have already started. Small estate affidavits can also not be used when the value of the estate exceeds the limits that define a small estate.
Although many states are now beginning to implement special small estate affidavits for transfers of real property, not every state allows for individuals to receive real estate without going through the probate process first. Some states may even exclude registered watercraft (e.g., boats or jet skis), motor vehicles, and out of state property.
In contrast, some common non-probate assets that may be eligible for transfer under a small estate affidavit include trust assets, retirement benefits, life insurance, jointly owned properties, and assets held in a payable on death bank account.
Additionally, a person also may not be able to use a small estate affidavit if they do not meet the will requirements enacted in their state and/or if they do not wait for the requisite amount of time to pass before they file the affidavit.
Do I Need a Lawyer for Help with Small Estate Affidavits?
Small estate affidavits are becoming increasingly popular legal documents to use when attempting to bypass the probate process. In fact, the use of these affidavits has become so widespread in many states that the scope of the items that can be transferred is starting to expand as well.
As previously mentioned, however, each state has different laws and requirements that may affect the types of property that can be transferred under a small estate affidavit. Thus, to find out whether you are eligible to claim property through a small estate affidavit, you should consider contacting a local estate planning lawyer for further advice.
An experienced estate planning lawyer will be able to assist you in completing and filing the affidavit, as well as can guide you through the necessary steps. Your lawyer can also answer any specific questions you may have about a small estate affidavit and can help you file a claim should any disputes arise in connection with your affidavit (e.g., if a property owner refuses to transfer certain assets or property).
In addition, your lawyer can provide representation if you need to attend a court hearing and can fix any errors that may be corrected in the event that your affidavit is denied.