Sometimes smaller estates can be probated through a Small Estate Affidavit. In order to do so, it must meet certain requirements, as discussed below.
- There must be no Will. If the person that died left a Will, then this is not the right procedure to use.
- The estate must be less than $75,000 in value (not including the value of the homestead or other exempt property.) So if the value of the estate is more than $75,000, excluding the homestead and other exempt property, then this is not the right procedure to use. (It used to be $50,000, but has increased to $75,000.)
- The only real property that can be transferred is the Homestead property. If there are any non-homestead properties, like other homes, lots, time shares, or royalty interests, then this is not the right procedure to use. [* As of September 1, 2015, the only real property that can be transferred under a Small Estate Affidavit is Homestead that would be passing to a surviving spouse and minor children. If there is other real property involved, an Affidavit of Heirship may also need to be filed separately.]
- It requires that 30 days have passed since the date of death, and no petition for the estate has been filed or granted.
- There must be a solvent estate, meaning that the assets of the estate must be greater than the amount of debt owed. Exempt property may not be included in determining if the estate is solvent.
A Small Estate Affidavit requires two (2) disinterested witnesses to file a sworn affidavit affirming Heirship. Since there is no Will involved, the heirs-at-law will take their intestate share, just like with a Determination of Heirship.
The Affidavit must list all assets and liabilities, distributees under the laws of intestacy, and their relationship to the deceased.
The court does not have to grant the Small Estate Affidavit, even if all of the requirements are met. It is within the discretion of the Judge to sign the Order on the Small Estate Affidavit or not.
If the Judge signs the Order on the Small Estate Affidavit, it should be filed in the real property records where the homestead property is located in order to transfer the homestead property to the proper heirs. There is no deed prepared to transfer the real property. The Small Estate Affidavit states whom the heirs are, the percentage that they take under the laws of decent and distribution, and that is the information used to show the transfer of interest to those heirs.
A certified copy of the Small Estate Affidavit and Order can be ordered and used to have access to bank accounts or transfer vehicles and other property to the heirs-at-law.
If it is appropriate and all the requirements are met, a Small Estate Affidavit can be a more affordable way to handle the probate of someone’s small estate.