In many states, if the total value of property left by a deceased person is under a certain amount, the people who inherit that property can claim it directly without going through a probate court proceeding. All they need to do is prepare a simple affidavit (s sworn statement) and present it to the institution, such as a bank, that has the asset. This "small estate" affidavit procedure often can't be used for real estate (it depends on your state), but works very well for assets such as bank accounts.
Compared to probate, small estate affidavits are easier, quicker, and less expensive for the inheritors. If you're the executor of an estate (tasked with wrapping up someone's estate) and the estate qualifies as a "small estate" in your state, you'll want to encourage inheritors to use a small estate affidavit. They'll get access to their inheritance faster, and more of their inheritance will remain intact, since they'll pay fewer or no probate fees and attorney fees.
These states allow inheritors to claim assets with an affidavit rather than probate court procedures, so long as the estate is small enough and meets the state's specific requirements.
Even if your state doesn't have a small estate affidavit option, it likely offers a "summary probate" or simplified probate process for small estates. Unlike the small estate affidavit procedure, with summary probate you can't skip the probate process completely, but you can use a more streamlined version of it, which still saves time and expense.
An inheritor who wants to use an affidavit to claim inherited property must state, on the affidavit, that the estate qualifies as a "small estate" under the state's laws. Each state defines "small" estates differently, so you'll need to look up the exact small estate affidavit requirements in your state. The requirements can vary widely from state to state.
As one example, in Illinois, a small estate is one that has a total value of $100,000 or less. To determine the value of the estate, Illinois law states that you must add up the value of the deceased person's property that passes under a will or by state law. This means that when tallying up the property, you won't be counting property that passes outside of probate (known as "nonprobate property" or "nonprobate assets"), such as:
For more on which assets go through probate and which do not, see What Assets Must Go Through Probate?
You might be surprised to discover that even relatively large estates can qualify as "small" ones for the purposes of the small estate affidavit, so long as the majority of the assets are non-probate assets.
In Illinois, to qualify for the small estate affidavit, the estate also can't include real estate, unless the real estate passes outside of probate. Real estate that passes outside of probate includes property:
But every state has its own rules. You might encounter restrictions such as:
Generally, if the estate qualifies for the affidavit procedure, all an inheritor needs to do is:
Most states impose a waiting period of a month or two (after the death) before an inheritor can claim assets with a small estate affidavit—but this wait time is usually much shorter than waiting for the probate process to finish, which can take six months to over a year. Banks and other institutions are familiar with small estate affidavits and should cooperate without a fuss.
Many state court systems (Utah, for example) and counties (Sacramento and others in California, for example) make fill-in-the-blank affidavit forms available online. Some institutions, such as banks and government pension agencies or motor vehicle departments, might also provide their own forms for inheritors to use. In these cases, you can create an affidavit just by filling out the template.