If person dies leaving a small estate valued below a certain threshold amount, many state laws allow the estate to pass outside of probate or to be administered through simplified probate procedures. A small estates proceeding is an abbreviated or simplified method for settling an estate in lieu of formal probate proceedings. When an estate passes through probate, it is generally necessary to hire a probate lawyer. If an estate qualifies for small estates administration, the expense of administering the estate and the time required to distribute property to the deceased personís heirs is greatly reduced.
The valuation limits on a decedentís estate for using a small estates exemption is as low as 10,000 dollars in some states and as high as 100,000 dollars or more in other states. An estate that is considered small in one state may require formal probate proceedings in another. In some states, small estate procedures are not available if the deceased left real property other than real estate that passes by operation of law to the surviving spouse. To view probate laws for your state, go to state laws.
You will need to determine whether the estate qualifies for small estate administration either by consulting a probate attorney or by doing your own legal research. Probate courts have strict rules against providing legal advice and cannot advise whether the estate you are settling meets the requirements for small estate administration.
Is Probate Lawyer Needed for Small Estate?
If you are the executor or personal representative of a small estate, there are several steps in the estate administration process you can handle on your own. However, it is essential to consult a probate attorney before you begin the process. If you make a mistake in estate administration, it can be very costly.
Meet with a probate attorney to find out what steps in the estate administration process in your state can be handled without an attorney and what work should be handled by the probate attorney. For example, if the deceased left a small estate that can be administered by affidavit procedure, it is usually best to have a probate lawyer prepare the affidavit. If a closing statement is required to be filed with the probate court, you may also want a probate lawyer to prepare the closing statement.The probate laws of every state are different and most have many technicalities that are not obvious, especially to a non-lawyer. Settling an estate can also have significant tax ramifications which require assistance from an attorney or tax professional.If you are attempting to administer a small estate without consulting an attorney, be aware you cannot rely on the probate court for guidance or legal advice. The clerks and staff of most probate courts have very strict guidelines about what information they can provide to the public. In most cases, you can get very limited information from the probate court about the procedures for settling an estate. For information on the forms used to probate an estate, refer to our free probate guide. Consult a probate lawyer first to ensure you complete your duties as an executor or personal representative in accordance with the law.
How to Calculate Value of Probate Estate
To determine if the estate you are administering qualifies as a small estate under state law, you have to determine what assets are considered probate assets so you can calculate the value of the probate estate. In general, the following types of property are considered part of the probate estate: 1. Real estate owned solely by the decedent or real estate owned by the decedent as tenants in common, except homestead property; 2. Bank accounts owned solely by the decedent on which no pay on death beneficiary is named; 3. Vehicles, jewelry, furniture, and other personal property owned solely by the decedent; 4. Stocks and bonds owned solely by the decedent on which no transfer on death beneficiary is named; and 5. Any bank account, retirement account, pension, annuity, life insurance policy or other asset that lists the decedentís estate as the beneficiary or on which no beneficiary is named.
It is important to remember that probate laws are state specific. The information on this page may not reflect the probate laws of your state.
What is a Small Estate Affidavit?
If the total value of real and personal property in the decedentís estate does not exceed a certain threshold amount, many states allow the estate to be settled with a small estate affidavit procedure in lieu of formal probate proceedings. The small estate affidavit procedure allows a person entitled to the deceased personís property to obtain it by executing and submitting a form of affidavit that complies with state law. To the extent this method is available to administer an estate, it is a much less expensive and faster alternative to probate.Some states use a single form of small estate affidavit while others have several different forms depending on whether the decedent died with a will or without a will, called intestate or whether the estate includes real property or only personal property. See dying without a will. If you plan to use a small estate affidavit to claim estate property or administer an estate, make sure you use the correct form and follow all instructions for executing and submitting the form.If your state has a small estate affidavit process, the affidavit usually may be filed by the decedentís heirs or devisees, the executor or personal representative named in the decedentís last will, or a creditor of the decedentís estate. See creditor claims. There is usually a waiting period of thirty to sixty days after the decedentís death before the affidavit may be presented to claim property. State law may require the affidavit to be notarized and witnessed. A certified copy of the decedentís death certificate and a filing fee usually must be filed with the affidavit.If you are the person filing the affidavit, you may be required to notify the deceased personís heirs or beneficiaries and to certify that you have paid all debts of the estate before you can submit the affidavit. If there is a will contest, a dispute among the decedentís heirs, or any other controversy surrounding the estate, you may not be permitted to use the affidavit procedure. If you need to change title to real estate as part of settling the estate, you may be required to go through formal probate proceedings rather than using an abbreviated process such as the small estate affidavit. See title to property.The procedures and requirements for filing a small estate affidavit are set by state law. The information provided on this site may not reflect the laws of your state. Before using a small estate affidavit or any similar method to administer an estate, review the probate code and other relevant statutes of the applicable state and consult a probate lawyer.
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