Avoiding Probate: The Small Estate

Trying to avoid probate? It's a worthy goal; probate can cost your inheritors time and money. However, if your estate is relatively small, you just might not have to worry about probate at all.

Almost every state now offers shortcuts through probate—or a way around it completely—for "small estates." These transfer procedures get property to the inheritors faster than going through traditional probate. Each state defines "small" differently. You might be surprised to find that an estate with a decent amount of property in it still qualifies as a small estate. It just depends on your state's probate laws. Some states exclude certain types of property when counting up the size of the estate, meaning that even relatively large estates, worth even hundreds of thousands of dollars, might still be eligible for these probate shortcuts.

There are two basic kinds of probate shortcuts for small estates: (1) affidavit procedures that allow you to claim property simply by presenting a sworn statement, and (2) simplified court procedures.

Claiming Property With Small Estate Affidavits

If the total value of all the assets you leave behind is less than a certain amount, the people who inherit your property may be able to skip probate entirely. Instead, your inheritors use a sworn document (called an affidavit) to collect property. How small in value your estate must be for your inheritors to use this affidavit procedure depends on your state's law, and varies hugely among the states.

In some states, this procedure is available only for personal property—meaning any property except real estate. Some states also have a separate affidavit you can use to claim real estate that is less than a certain amount.

Example: In California, you can use a small estate affidavit for personal property (officially called an "Affidavit for Collection of Personal Property") to claim property in an estate that is worth less than $184,500, and you can separately use an affidavit to collect real estate worth less than $61,500 (officially called an Affidavit: re Real Property of Small Value).

The affidavit is a short document stating that the inheritor is entitled to a certain item of property under a will or state law. This paper is signed under oath. When the person or institution holding the property—for example, a bank where the deceased person had an account—receives the affidavit and a copy of the death certificate, it releases the money or other property to the inheritor.

Simplified Court Procedures

Another option for small estates (again, as defined by state law) is a quicker, simpler version of probate. The probate court is still involved, but it exerts far less control over the settling of the estate. The property goes through probate in less time, which means the inheritors don't have to wait quite as long. In many states, these procedures are straightforward enough to handle without a lawyer, so they save money as well as time.

Small Estate Probate Rules in Your State

To determine if your state has a probate shortcut and what size your estate must be to qualify for it, see Probate Shortcuts in Your State.

If you find your estate is too large to be eligible for a probate shortcut, see How to Avoid Probate for some other ways you can skip probate and save your loved ones time, money, and headaches through strategic estate planning.

If you find you don't need to do any probate avoidance since your estate will qualify for a probate shortcut, you will probably still need a will. To make your own will that is legally valid in your state, you can use a reputable service such as Nolo's Quicken WillMaker.