What Is a Small Estate Affidavit Used for?
The procedures for small estates are designed to provide a streamlined probate process where there are insufficient assets in an estate to warrant the full probate procedure. The rules and requirements of a small estate vary in each state, but usually range from as little as $5,000 up to $100,000 in assets.
A small estate affidavit is used to inform the court that a particular estate meets the requirements of a small estate and to request the appropriate summary probate process.
How different states calculate the size of the estate for small estate classification varies considerably. Some states will use only the value of the personal property; that is, exempting real estate. Others will use the net estate after taxes, mortgages, bills and other debts are subtracted from the total value.
Other states will consider the gross value of all assets including real estate regardless of how much value is actually available to the beneficiaries.
If the estate meets the small estate rules for the jurisdiction, a person entitled to serve as personal representative can prepare the affidavit of small estate. If there is a will with a named executor, this is the person who generally fills this role.
Frequently, though, small estates will be intestate, without a will. In these cases, a person entitled to inherit property under the state laws of intestacy, usually spouse, children or parents (in that order), have priority for filing the affidavit.
The small estate affidavit is a formal communication from the representative of an estate to a probate judge.
It must demonstrate compliance with the requirements of the small estate laws, which beyond the size of the estate can require a certain period of time since death, proof of death (usually by attaching the death certificate), a statement of the decedent’s residency in the state, and a description of the estate’s assets, debts and net worth.
The underlying purpose of the small estate affidavit is to entitle the person filing the document to receive possession and ownership of the decedent’s property without going through the formality of probate. In the affidavit, the individual must identify any other claimants, beneficiaries, or heirs that have rights to the decedent’s estate.
If there are other claimants, the affiant (person who files the affidavit) must swear to serving them appropriate notice. This alerts the court to their existence and protects their ability to enforce their rights to property in the estate.
As with all affidavits, the small estate affidavit must be signed and sworn in the presence of a notary in the state in which it is filed. Usually the jurisdiction for probate is the county in which the decedent had his legal residence.
The affidavit is filed with the probate court of that county and becomes a legal document usable by the inheritors to enforce their rights to the property.
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