How to make a Small Estate Affidavit

When a person passes away, their assets typically need to go through probate (unless they were placed in a trust or held in joint ownership). Probate is the legal process where the court reviews the estate to ensure the correct distribution of assets. For large estates, probate can take six months or more. However, for smaller estates, many states offer a faster, simpler process using a Small Estate Affidavit.

What Is a Small Estate Affidavit?

A Small Estate Affidavit is a legal document that helps heirs or survivors transfer a deceased person's assets without going through the full probate process. This Affidavit of Small Estate includes details about the estate’s assets, their value, and who will inherit them. If the person who passed away (the "decedent") didn’t leave a Will, state law determines who inherits under the intestate rules.

To file a Small Estate Affidavit, the court usually requires a certified copy of the death certificate, and either the original or a copy of the Will (if there is one). The person filing the affidavit, called the “affiant”, also needs to check ownership of assets like bank accounts and property. How property is titled (e.g., joint ownership) may affect what is included in the estate.

What Is Considered a Small Estate?

Each state sets its own value limit for what qualifies as a small estate. The limits range from $5,000 in Ohio to $200,000 in Wyoming. Some states have no special process for small estates, while others have specific rules about which assets qualify. 

The following is a list of each state and a link where you can locate the law or statute that governs small estate proceedings. Also, because the maximum value of the estate may change and also because of the varying rules around what qualifies as a small estate, it’s always best to consult with a lawyer to ensure your situation meets your state’s small estate guidelines.

Maximum Value of Small Estates

Important: This process cannot be used by residents of Florida, Georgia, Kentucky, New Hampshire, or West Virginia.

How to Make and Use a Small Estate Affidavit
 

1. Wait the required time

Most states require that you wait 30-45 days after the decedent’s death before filing a Small Estate Affidavit.

2. Identify the decedent

The person who has passed is referred to as a “decedent”. When completing the Affidavit of Small Estate, the court will generally need to know the following information about them:

• Date and place of death.
• Their last permanent address.
• Whether they died with or without a Will.
• A list of their surviving heirs or beneficiaries, including information about the decedent's spouse or domestic partner.

3. Inventory the assets in the estate

Make a detailed list of the decedent’s assets, such as real estate, personal property, and bank accounts, and assign a fair market value to each item to confirm that the estate qualifies as "small" under your state’s laws. 

• Real Property:  Includes land and permanent structures (e.g., houses, garages, barns). Mobile homes may be considered real or personal property, depending on state law.

• Personal Property: Includes jewelry, artwork, furniture, bank accounts, stock certificates, etc.

• Vehicles: Most states require the inclusion of cars, trucks, or motorcycles. You can determine the value using online estimators or by having the vehicle appraised.

Note: Do not include assets in certain types of trust accounts, jointly titled accounts, payable-on-death accounts, or jointly-owned property with the right of survivorship, as these typically pass to the designated beneficiary or co-owner outside the estate.

4. Document all debts and expenses

You must pay any outstanding debts before distributing assets. Document any outstanding debts and obligations of the estate, such as funeral expenses, medical bills, and other liabilities. These may include:

• Funeral Expenses: In many states, all funeral expenses must be paid prior to filing an Affidavit of Small Estate. Funeral expenses may include the cost of the burial or cremation, cemetery plot, flowers, services, obituary publication, death certificates, memorial services, and reception.

• Creditor Claims: Creditors (e.g., utility companies, landlords, doctors) must be paid before the estate is settled. Many states require public notice to creditors, giving them time to submit claims. It is advisable to check with your local probate court to determine what laws pertain to creditor claims as well as when and where these claims are to be published.

• Taxes and Fees: While a small estate may not be subject to estate taxes under Internal Revenue Service guidelines, the affiant should review IRS guidelines to insure the estate will not owe taxes. You may also want to consult your local probate court for any filing fees associated with the Affidavit of Small Estate.

5. Provide Will and Codicils

If the decedent left a Will, it must be submitted along with the Small Estate Affidavit. Codicils (amendments to the Will) should also be included. If there is no Will, the state's intestacy laws will determine how the estate is distributed. This helps establish the validity of the claims and distributions outlined in the affidavit.

• Wills: If a decedent died having written a Will (known as dying "testate"), the matter of who will receive gifts from the Will, or items from the decedent's estate, will be dictated by the Will.

• Codicils: A Codicil is a document prepared by the decedent or the decedent's attorney which modifies one or more provisions of the original Will. The court will carefully review the original Will and any Codicils together to determine how the decedent wanted to gift their assets.

• Intestate Estates: When a decedent dies without a Will, the decedent has died “intestate”. In this case, if there are any assets that the decedent had, and if there are any living heirs, the state's intestacy laws will dictate which heirs will inherit, and how much each heir will share in the decedent's estate.

Note: If there are any disputes about the decedent's Will, a small estate procedure cannot be used. In this case, the court will need to review and determine the outcome of these disputes, or the parties to the dispute will need to mediate or to settle the matters.

6. List all possible heirs and beneficiaries

Whether the decedent had a Will or not, list all possible heirs, including those who may have been left out of the Will. This ensures everyone is accounted for and notified.

If the decedent died without a Will, the decedent's surviving spouse and children may be entitled to inherit the decedent's property, depending on state law.

7. Provide information about yourself

The affiant is the person responsible for filing the Affidavit of Small Estate. This is usually the executor named in the Will or, if there is no Will, the closest relative. The affiant must provide their information, including their relationship to the decedent and their contact information. 

This individual may be responsible for managing and distributing the estate as outlined in the affidavit.

It is best to check state law before developing an Affidavit of Small Estate to ensure that the proper person is completing the Affidavit.

8. Sign the affidavit

The affiant must sign the Small Estate Affidavit, affirming that all information provided is true and accurate to the best of their knowledge.

Many states require that the affidavit be signed in the presence of a notary public, while some states may also require additional witnesses. Verify your state’s specific requirements to ensure compliance. 

You should also attach a certificated copy of the decedent's death certificate and a copy of the Will and/or any Codicils to the Affidavit. Be sure to keep a copy of the Affidavit of Small Estate for your records.

9. File the affidavit

File the completed small estate affidavit with the probate court or county clerk in the county where the decedent resided at the time of death. This is typically where the estate matters are handled, but may be different depending on the state or county. 

Upon filing, the court or clerk will review the affidavit to ensure it meets all legal requirements. They may provide a certificate or other documentation confirming that the affidavit has been accepted.

Once accepted, the affidavit enables the affiant to proceed with the distribution of the estate’s assets according to the instructions outlined in the affidavit, minus any outstanding debts and obligations.

10. Consult a Lawyer

If you have any questions about your Small Estate Affidavit or the process, it's always a good idea to ask a lawyer.

Important Terms Related to Small Estate Affidavits

• Affiant: The person who files the Small Estate Affidavit.

• Codicil: A legal document that changes or modifies a Will.

• Community Property: Property automatically owned by the surviving spouse without the need for probate. In some states, property is considered community property by default.

• Decedent: A person who has died, whose estate will be distributed according to a Will or state law.

• Distribution: The division of the decedent's assets after all debts are paid.

• Escheat: When the state becomes the heir to an estate because the decedent died without a Will and has no heirs.

• Estate: The collection of real property, personal property, household items, and other assets, as well as debts and other unresolved matters, left after a person’s death.

• Executor: Also known as a personal representative, this person is named in the Will to handle the final matters of the estate, including distributing assets and settling debts.

• Heir: A person entitled to inherit assets under state law.

• Fair Market Value: The price a buyer would pay for property at the time of the decedent’s death, in a standard market transaction.

• Joint Tenancy: A form of property ownership where two or more people share ownership. When one joint tenant dies, their share passes to the surviving joint tenant(s) without going through probate.

• Intestate: When a person dies without leaving a Will, their estate is distributed according to state law.

• Tenants-in-Common: A type of property ownership where each owner has an individual share of the property. When one owner dies, their share becomes part of their estate and is distributed to their heirs.

• Testate: When a person dies with a valid Will in place.