Claiming Inherited Property With a "Small Estate" Affidavit

Find out if you can skip probate and claim your inheritance using a simple sworn statement or affidavit.

By , Attorney

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 (sworn statement) and present it to the institution (such as a bank) that is holding 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, the affidavit process is far easier, quicker, and less expensive for the inheritors. If you're the executor of a small estate (tasked with wrapping up someone's small estate), you'll want to encourage inheritors to use it. They'll get access to their inheritance faster, and more of their inheritance will remain intact, since fewer probate, attorney, and executor fees will be taken out.

Which States Offer a Small Estate Affidavit Procedure

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:

  • Alaska
  • Arizona
  • California
  • Colorado
  • Delaware
  • Hawaii
  • Idaho
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Louisiana
  • Maine
  • Michigan
  • Minnesota
  • Mississippi
  • Montana
  • Nebraska
  • Nevada
  • New Mexico
  • North Carolina
  • North Dakota
  • Oklahoma
  • South Carolina
  • South Dakota
  • Texas
  • Utah
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

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.

Who Can Use an Affidavit

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. The requirements for qualifying 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 include the gross value of all of the deceased person's property that passes under a will or by state law. The small estate can't include real estate, unless the real estate passes outside of probate, such as if it was owned jointly as joint tenants (with right of survivorship) and passed directly to the surviving owner, or if it was transferred using a transfer-on-death deed. Non-probate property, which is not counted when tallying up the deceased person's property for small estate purposes, also includes:

  • retirement accounts with named beneficiaries
  • payable-on-death bank accounts
  • property held in a living trust, and
  • life insurance policies with named beneficiaries.

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 affidavit, so long as the majority of the assets are non-probate assets.

But every state has its own rules. Some states add restrictions, such as:

  • making the procedure available only to certain surviving relatives
  • severely limiting the kinds of property that can be claimed (to bank accounts or vehicles, for example), or
  • not allowing the procedure if the deceased person left a will.

How the Small Estate Affidavit Process Works

Generally, if the estate qualifies for the affidavit procedure, all an inheritor needs to do is:

  • prepare an affidavit that meets state law requirements and explains why the inheritor is entitled to the property and that no probate proceeding is necessary
  • sign the affidavit in front of a notary public, and
  • present the affidavit and a certified copy of the death certificate to whomever is in possession of the asset.

Most states impose a waiting period of a month or two before an inheritor can claim assets with an affidavit—but this wait time is usually much shorter than waiting for the probate process to finish. Banks and other institutions are familiar with these affidavits and should cooperate without a fuss.

Where to Get Small Estate Affidavit Forms

Some 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.

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