Part 2 of a 3- part series on estate administration shortcuts. View part 1 of the series.
Successfully pulling off the Small Estate Affidavit on your first try is asking to hit a home run the first time you pick up a bat. Sure, it can happen, but…
When Would a Small Estate Affidavit Be Available?
A Small Estate Affidavit is a probate shortcut that is available only when the decedent dies without a valid will. It is signed by all the decedent’s heirs and then filed with the court clerk of the appropriate court. The Court examines the affidavit and, if it complies with the statutory requirements, the Court approves it.
Once the affidavit is approved, then the estate property of the decedent can be distributed without formal administration or the appointment of an administrator.
In theory, a Small Estate Affidavit is a great shortcut to clean up the mess left by someone who died without a will. So what are the problems?
Problems That Occur When Taking Shortcuts With a Decedent’s Estate
The first problem is that the statutory requirements are tough to meet. Really tough.
The second problem is that judges vary widely on how much information they require on the Affidavit. An Affidavit that one judge might consider acceptable may not meet the requirements of a different judge.
A Small Estate Affidavit can be used when the value of the estate assets, excluding homestead and exempt property, is less than $75,000 and exceeds the known liabilities of the estate. The known liabilities do not include any liabilities secured by the homestead and exempt property.
Let’s parse that out a bit. The decedent is dead. The decedent did not leave a valid will. You need to figure out the identity of the heirs, all the decedent’s assets, and all the decedent’s liabilities before you can even start preparing the Small Estate Affidavit.
Let us hope the decedent left good records and you can access them.
Then you must contact the heirs and convince them that they need to sign an affidavit.
Then you need to find 2 “disinterested” witnesses who know the family history and are also willing to sign the affidavit.
After that you need to determine if the decedent left a homestead and identify what assets are considered “exempt.”
Shall we go on?
Steps Needed To Execute A Small Estate Affidavit
The affidavit cannot be filed until at least 30 days have passed from the decedent’s death. The affidavit, which will be a public record once you file it. In addition to listing the heirs and their addresses, and the decedent’s assets and liabilities, the affidavit must also include relevant family history facts that show each distributee’s status as an heir.
How many relevant family history facts do you have to include? See Problem Two above – who knows what will be enough for the judge? A starting point would be the date of birth of the decedent, the birthdate and birthplace of any children, the history of decedent’s marriages and divorce or death of any spouses, and places the decedent lived. If the decedent did not leave children, or a child predeceased, then you must go further out on the family tree.
The Affidavit must then be signed by every heir with “legal capacity”, the natural guardian or next of kin of any minor or incapacitated heir, and by 2 disinterested witnesses. The Affidavit should state how the witnesses knew the decedent.
If the Affidavit is approved, then the heirs can provide a certified copy of the Affidavit to the people holding the decedent’s property and demand that it be turned over to them.
If. That is a big If.
Hammerle Finley Can Help With Your Estate Planning Needs
Wondering what solutions would work best for you and your family? Schedule a consultation with one of the experienced attorneys at Hammerle Finley to discuss your options.
Attorney Virginia Hammerle has practiced litigation and estate planning for 40 years. She is founder and managing attorney for Hammerle Finley Law Firm.