When a person dies, her assets must usually pass through a lengthy legal process known as probate before the assets can be distributed to the heirs or beneficiaries. In most states, however, there is the option to use a small estate affidavit when the assets of the estate are under a certain dollar amount, which varies by state. An attorney is not required to file a small estate affidavit, although it may be helpful to consult with one prior to filing the small estate affidavit.
Probate is the legal process by which a decedent's estate assets are inventoried, claims paid to creditors and any remaining assets passed down to heirs or beneficiaries. Probate is a very formal and often lengthy process. The probate process can also be expensive. For large estates, a formal probate of the estate is not only required but ultimately may be beneficial as the court will oversee the entire process to be certain all property is accounted for, all debts paid and all heirs or beneficiaries located and notified.
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Small Estate Affidavit
While a formal probate may be helpful for large estates, when a decedent dies with only a small amount of property, a formal probate process seems unnecessary. Most states, therefore, allow for a small estate affidavit to be filed in lieu of a formal probate of the estate. The precise rules for when a small estate affidavit may be filed will vary by state. However, the value of the estate, type of property found in the estate and whether or not all beneficiaries are in agreement regarding the filing of the affidavit are usually considerations. If using a small estate affidavit is an option, it will cut down on the expense of administration and reduce the time to administer the estate.
Most states provide a form that may be used by anyone wishing to file a small estate affidavit. Forms are generally available online or in person through the probate court. The affidavit must be completed and signed by someone entitled to file the affidavit. Who may file will also vary by state. Usually a spouse or child or someone named in the will as a beneficiary may file. The judge will review the affidavit and any supporting documents and, if approved, will order the transfer of the property listed in the affidavit to the beneficiaries.
Pros and Cons of Retaining an Attorney
An attorney is certainly not required to file a small estate affidavit. It may, however, be a good idea to consult with an attorney before preparing and filing the affidavit to be certain that the estate qualifies for the expedited administration afforded by a small estate affidavit. Probate law in general can be very complicated, and while a small estate affidavit may save time and money, if a mistake is made it can cost considerably more down the road.