Wills, trusts, estates and the complexity of the probate process are often topics of discussion between clients and their attorneys, or even among family members. When it comes to probating an estate, however, one size may not necessarily fit all, particularly when the estate has few assets and has no or limited debt. Small estate laws vary from state to state; they are designed to simplify the probate process and involve the filing of an affidavit.
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Contact the probate court in the county where the decedent resided, or go to its website to determine the criteria necessary to file a small estates affidavit. Most states have small estate affidavit forms available. You can also find sample state forms online, or use an online document preparation website to prepare a form that complies with your state’s requirements.
Fill out the state's affidavit form. If you decide to draft your own affidavit, you should download the state statutes concerning small estates to ensure your affidavit meets state requirements. Enter the name of the decedent and the date of his death on the affidavit. You will also need to enter the names of the heirs with claims to the estate -- and in some cases, the proportionate value of their claims. The affidavit should state that the heirs have assigned their rights to you. If there is a will, some states require the original be filed with the court and a copy attached to the affidavit along with a certified copy of the death certificate. Some states have testate, or will-attached, affidavits and intestate, or no-will, affidavits.
Describe the types of assets of the estate, as well as the estate's overall value in the affidavit. You may have to have a professional appraisal done to provide this information. The maximum asset value determining whether you can file a small estate affidavit varies from state to state. Include a statement that no party has filed a petition to be appointed personal representative of the estate and no estate proceedings have begun. Some states require that copies of the affidavit be served upon all interested parties including creditors, while attorneys in other states discourage the use of a small estate proceeding if there are funeral expenses or creditors.
Sign the affidavit, following the instructions on your form, or your state's instructions. Typically, you must sign the affidavit in the presence of a notary public and witnesses. File the completed affidavit with the local probate court where the decedent resided. Pay any filing fees due upon filing. Some states may require a hearing.