If an estate is small enough, under state law, then the people who inherit property won't have to go to probate court. Instead, they will simply prepare and sign a brief affidavit (sworn statement) saying that they are entitled to use the procedure and to inherit a particular item of property. (There's a sample affidavit, so you can see what one looks like, below.) Then, to get actual possession of the asset, they simply present the affidavit to the person or institution, such as a bank or broker, holding the asset.There are restrictions, however, on who can use this method:
- The property left by the deceased person must be worth less than the ceiling set by state law. These limits vary widely.
- In most states, the procedure can't be used to transfer real estate. A handful of states, however, do provide a special affidavit procedure for real estate. But because real estate transfers are always a matter of public record, the affidavit must be filed in court or with a public agency.
- In most states, inheritors cannot use the affidavit procedure if regular probate court proceedings have begun.
Inheritors can use an affidavit to collect their property whether or not there was a will. In the affidavit, they usually state whether they are inheriting under the terms of a will or under state law. If there's no valid will, your state's "intestate succession" law determines who inherits property. The intestate succession formula is slightly different from state to state, but generally if there are a surviving spouse and children, they inherit everything. If not, then parents, grandchildren, or siblings are next in line.
The process of transferring your property to its new owners will be initiated by the people who are inheriting it. Usually, there is a short waiting period—commonly, 30 or 45 days after the death—before anyone is allowed to collect the property.
To get the property, they will present their affidavits and a copy of the death certificate to the person or institution who has possession of the property. Some institutions may also insist on seeing a copy of the will, if any. If the affidavit appears truthful, that person or institution is allowed, by law, to turn over the property without investigating the truth of the statements in the affidavit.
EXAMPLE: In his will, Perry leaves $20,000 to Alice. A month after Perry dies, Alice goes to his bank and fills out the affidavit form she picks up there, swearing that she is entitled to the money and that the estate qualifies for the state's small estate affidavit procedure. The bank, after looking at the affidavit, a copy of Perry's death certificate, and possibly the will, transfers $20,000 from Perry's account to her.
Banks, other financial institutions, and state motor vehicles agencies, which deal with this sort of transfer all the time, may have their own affidavit forms for people to fill out. Otherwise, the claimants may have to put together their own, making sure it covers all the conditions the state statute requires. Generally, an affidavit must include statements to the effect that:
- The value of the probate estate does not exceed the statutory limit.
- The required waiting period has elapsed since the death.
- No probate court proceedings have been initiated.
- The claimant is entitled to the property. Although it's not always required by statute, it's a good idea for the claimant to explain the basis of the claim—for example, because of the deceased person's will or state intestate succession law.
The affidavit may need to be notarized—that is, signed in front of a notary public—or it may be enough for it to include a statement to the effect that it is being signed "under penalty of perjury."
I, the undersigned, state as follows:
1. ______________ , the decedent, died on _____________ .
2. The value of the entire probate estate, determined as of the date of death, wherever located, including specifically any contents of a safe deposit box, less liens and encumbrances, does not exceed $20,000.
3. At least thirty days have elapsed since the decedent's death, as shown by the attached certified copy of the decedent's death certificate.
4. No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction.
5. I, the undersigned, am entitled to payment or delivery, under the terms of the decedent's will, of the following property:
6. I declare that the foregoing is true and correct.
In most states, an affidavit needs to be given only to the entity that is holding the property. But some states now require a copy to be sent to the state taxing agency, in case any state taxes are due. If the deceased person received any public benefits, another copy may need to go to the Health or Welfare Department; if there's money left in the estate, the government will want to be reimbursed for the aid it provided.
Most banks, brokers, and other entities your inheritors will likely deal with are quite familiar with the affidavit process. But if one refuses to cooperate, just showing an unhelpful clerk a copy of the statute (readily available online or at a public law library) should melt away the opposition. If that doesn't get results, chances are a phone call or letter from a local lawyer will. And as a last resort, the inheritor can go to court—small claims court, if possible—and demand that the assets be turned over.
Help for California readers. For a tear-out California affidavit form and instructions on how to use it, see How to Probate an Estate in California, by Julia Nissley (Nolo).