Small Estate Affidavit

What requirements are there for one to use the Small Estate Affidavit:

  • Decedent must have died intestate (meaning, there is no will);
  • There must not be a petition for a personal representative pending or granted;
  • 30 days must have passed since the decedent died; AND
  • The value of the estate, excluding the value of the Decedent’s homestead and exempt property, must be less than or equal to $50,000.00
  • The estate must be solvent (meaning the assets are greater than the liabilities), excluding any debt owed on the homestead and exempt property

What if the Decedent left a will?

The small estate affidavit is only an option when the Decedent died without a will, or intestate.

Who must sign the Small Estate Affidavit?

All distributees must sign the affidavit.  If one of the heirs / distributees cannot be found, this option is not available to avoid probate.

Two disinterested witnesses must also sign the affidavit.  These witnesses must be familiar with the family history, but they cannot benefit from the Decedent’s estate.  The witnesses must also be over 18 years old.

What real property can be transferred by the Small Estate Affidavit?

Only the Decedent’s homestead may be transferred.  It will not transfer ownership in any other real estate.

What property must be listed on the affidavit?

All of the property that the Decedent owned in detail as well as all liabilities must be listed on the Affidavit.

What other information must be on the affidavit?

Information on the marital and family history must be provided in sufficient detail so that it is clear who inherits the Decedent’s property.  The affidavit must also list the share of each heir must be listed on the affidavit.

Do I need a lawyer?

It can be very difficult for non-lawyers to properly fill out the small estate affidavit, because the affidavit must clearly state the shares that each heir is to receive in both separate and community property.  Understanding both what is separate versus community property and also the property distribution for each heir can be complicated.