Affidavit in Lieu of Probate

When an individual dies, she typically leaves behind assets in the form of personal property, real property or cash that requires a legal transfer to beneficiaries or heirs of the decedent. The process by which a decedent's assets transfer after death is known as probate. In many cases, a formal probate administration is mandatory; however, most states also provide a way to transfer assets through a simpler, quicker and less costly process. This process is usually effectuated by the use of a small estate affidavit.

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Formal Probate

The formal probate process starts by filing a petition to probate with the local probate court. The appointed executor of the will typically files the petition. The executor, or personal representative if no will exists, must then complete an inventory of the estate assets and file it with the court. The executor must notify any creditors and beneficiaries, and must file claims or contests to the will with the court. Eventually, any assets must fulfill all valid claims, including taxes, and a final accounting filed with the court. Upon satisfying any outstanding debts, any remaining assets transfer to the beneficiaries or heirs.

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Small Estate Affidavit

Individual states determine when an alternative to formal probate is appropriate for the transfer of property. Most states require that the entire value of an estate be under a certain dollar amount to use a small estate affidavit and that the decedent died intestate, or without a will. In most cases, only cash, personal property or a marital estate can transfer using a small estate affidavit. In addition, most states require all heirs to agree to the use of the affidavit.

Who May Initiate the Process?

State laws will also determine who can file a small estate affidavit. As a rule, either a spouse, child or other relative may file the affidavit. It is also a common requirement that all heirs sign the affidavit or that all heirs with an equal or greater interest in the property assign their interest to the person who is filing the affidavit.

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Benefits of Small Estate Administration

The benefits to using a small estate affidavit include a significant savings in both time and money. Formal probate can take months to conclude under the most forgiving circumstances. On the other hand, a judge can sign off on a small estate affidavit in a matter of days. The cost of formal probate can also be significant whereas a small estate affidavit incurs very little cost to the heirs.

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