5 minute read

Small Estate Affidavits: What You Need to Know

Small estate affidavits can be useful for protecting your assets and also avoiding probate. Learn more about small estate affidavits and how they work.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Going through probate court can frankly be a pain. To be clear, the probate process is designed to assess and distribute a deceased person’s assets in a fair and just way. It’s an important process that is a part of the fabric of our democracy. However, when that deceased person is a loved one — someone important that you just lost, then you are likely just trying to get by and find ways to cope with your grief. Adding the probate process on top of all this might feel like too much. 

What if we told you that there’s a way you could speed up the probate process or avoid probate completely? If you qualify, a small estate affidavit could be your answer! This guide will share everything you need to know about the small estate affidavit form: what it is, when they’re used, who qualifies, and how to fill it out.

What is a Small Estate Affidavit ?

A small estate affidavit is a sworn written statement that is used to settle an estate of someone who has passed away. The individual’s estate must be considered ‘small’, which will be defined more clearly in the next section. By submitting a small estate affidavit, you may be able to speed up the settlement of an estate and claim assets outside of the formal probate process.

A formal probate court oversees the process of distributing a decedent’s property to lenders, creditors, and then to heirs. This process can be costly and painful, especially during a time of grieving for a deceased person’s loved ones. Families can submit a small estate affidavit for qualifying estates, which may prevent the need to go through this formal and sometimes painstaking process.

What's Considered a “Small Estate?”

Before you opt for the route of a small estate affidavit, you need to make sure that the estate in question is legally qualified. 

Each state sets different definitions for what qualifies as a “small estate.” Let’s take the State of California for example. According to the California Probate Code 13200, a small estate is considered $166,250. The limit for the purpose of transferring real property is $55,425.

The limits are based on the total dollar value of a decedent’s assets. However, it’s important to know that only probate assets are counted toward these limits. These limits appear to increase from time to time, likely to account for inflation, so be sure to find out the up-to-date dollar limit in your state.

The list of assets that qualify as probate assets also changes from state to state. However, in most cases, items such as personal property, belongings, and financial accounts without beneficiary designations are counted toward the small estate limit. Any assets that were jointly owned with the decedent do not apply because they are exempt, meaning that they would be received outside of probate. 

When Should a Small Estate Affidavit Be Used? 

Finding out when a small estate affidavit should be used can be done by answering the following questions:

  • Does the decedent’s estate qualify as a small estate?

  • Did the decedent leave behind a will?

  • Has enough time passed?

First, you must make sure that the total dollar value of the decedent’s estate does not exceed the small estate limit in your state.

Second, determine whether or not the decedent left a Will. Typically, small estate affidavits are used when there is no Will, but some states might still allow it to be used alongside a Will based on various legal requirements. 

Last but not least, the person intending to use the small estate affidavit might be required to wait for a certain amount of time before they can submit the form. This is based on state law, and can be roughly two months.

You may want to consult an estate planning attorney to determine your eligibility.

Benefits of Small Estate Affidavit

The best way to explain the benefits of a small estate affidavit is to help explain everything that it is not. 

Probate is a legal process in which a court determines the validity of a deceased person’s will, inventories and values the assets belonging to the estate, and then oversees the distribution of those assets. The court typically orders for some of the assets to be liquidated and then used to pay off any outstanding debt. Examples of debt include personal loans, credit card debts, mortgages, and balances on utility bills. 

Once any applicable debts, taxes, and court fees are paid, the remaining estate is then distributed to the deceased person’s heirs. In our Probate guide, we explained that probate court can be a strain; 2 to 7 percent of the estate is taken away just to pay probate fees. Further, the probate process can take anywhere between several months to several years.

If the estate in question is eligible, a small estate affidavit can help a family skip through this entire process. Ideally, a small estate affidavit can get approved in just a few days, or a few weeks at most. If an estate is eligible for the affidavit, it is certainly a better alternative to going through probate.

Who Can Complete a Small Estate Affidavit Form?

To be clear, not anyone can complete a small estate affidavit form. Only specific individuals are eligible, depending on their relationship to the decedent. These include:

  • A spouse

  • A domestic partner

  • Children, or legal guardian of minor children

  • Parent of the decedent, if the decedent does not have a spouse

Even then, the listed individuals above are only eligible to submit a small estate affidavit form if the other conditions are met. First, the decedent’s total probate assets must be under the state’s small estate dollar limit. In most states, the affidavit is only to be used when there is no Last Will.

Where to Get a Small Estate Affidavit Form

You can work with a conventional estate planning attorney to draft a small estate affidavit, or you can find small estate affidavit forms online. Working with an attorney to create the small estate affidavit can cost a few hundred dollars. Online small estate affidavit forms and templates can be found for free.

Once you’ve filled out the form, you’ll typically need to print it out and provide your wet ink signature. You should also check with your state to find out whether or not a notarization is required.

How to Fill Out Small Estate Affidavit Form

Of course, you should always be prepared to consult your estate planning attorney if matters are complicated. Otherwise, most individuals can complete their small estate affidavit on their own. 

The following is an overview of how to fill out a small estate affidavit form. Note that these steps can vary slightly based on the state and county in which the decedent resided: 

1. Obtain a blank small estate affidavit form. In most cases, you can find it by visiting the probate court website. Note that this should be the court located in the county in which the decedent lived. Most county websites offer a self-help center where the form can be downloaded online. 

2. Fill out the form. Most affidavit forms include details on instructions on how the form should be completed.

3. Include required attachments such as:

a. A certified copy of the death certificate

b. Proof of the decedent’s ownership of any property you list in the form

c. Proof of your identity, typically a government-issued photo ID

d. Inventory and Appraisal form of any real property owned by the decedent.

4. Obtain signatures from anyone else who is legally entitled to inherit the property that you’re claiming on the form. Their signature represents their consent.

5. Get your documents notarized if required.

6. Wait until the property is transferred to you by the court.

How to Get a Small Estate Affidavit

If you qualify to submit a small estate affidavit, then it’s certainly the better alternative to waiting to see what a probate court will determine. Probate can take months, or even years, and can be quite costly. By submitting a small estate affidavit, you could potentially avoid probate altogether.

This brings about another conversation, which is the importance of estate planning in itself. These affidavits are often used when a loved one passes away without a Will. The probate process and small estate affidavits can be avoided completely with a Trust, which can be used in conjunction with a Last Will and Testament. By transferring your property into a Trust and leaving specific instructions for how your assets should be distributed, the probate court does not need to get involved. You can save your loved ones a lot of headaches by implementing a proper estate plan. Even if it’s possibly too late for one generation, it can serve as an important lesson and reminder for future generations.

Do you wish to create an estate plan today so that you can save your loved ones from hassle and pain later? We’re here to help! Our online state planning services are easy, affordable, and can all be one from the comfort of your house. Get started with Trust & Will today! 

In this guide, we talked about small estate affidavits, including what they are, when they should be used, and who would be eligible to use them. If you’re eligible, you can typically find your small estate affidavit online and fill it out for free. Is there a question here we didn’t answer? Reach out to us today or Chat with a live member support representative!