Small Estate Affidavits

When someone passes away, the property he or she owns becomes part of his or her estate.  In limited circumstances a small estate affidavit may be used as an alternative to probate.  In order to use a small estate affidavit, the following conditions must be met:

1)      the estate must be worth less than $100,000,

2)      the estate cannot contain any real estate,

3)      letters of office must not have been issued by the probate court,

4)      there cannot be any known claim against the estate or disputes among the beneficiaries,

5)      a copy of the death certificate must be attached, and

6)      if there is a will it must be filed with the clerk of the appropriate court and a certified copy must be attached to the small estate affidavit.

When a small estate affidavit is delivered to any individual or corporation holding assets of the estate, that individual or corporation is required to deliver the assets to the proper recipient(s) named in the small estate affidavit.  If any individual or corporation refuses to deliver the assets after receiving a small estate affidavit, the person(s) entitled to the assets may recover them in a civil law suit.

A small estate affidavit must be signed by an individual (the affiant) who is willing to take personal responsibility if there are unknown claims against the estate.  The affiant must state under oath that the facts contained in the small estate affidavit are true and such statements are made under the penalty of perjury.  Any individual who or corporation that has delivered property pursuant to a small estate affidavit is released from liability.

However, the affiant will be liable to anyone who has a prior right.  This is true even if the affiant does not keep any of the assets.  Anyone with a prior right is entitled to reasonable attorney fees in order to recover these assets from the appropriate party.