Small Estate Affidavit: What You Need to Know
If someone passes away without a lot of assets, they may have what is called a small estate. There are some steps that families can take in these cases to avoid the formal probate process.
Find out more about small estate affidavits below, including when one should be used, when it cannot be used, and when you don’t even need this step to distribute estate assets and avoid probate.
What Is a Small Estate Affidavit?
What is commonly known as a small estate affidavit, technically titled a Petition for Limited Letters of Administration of a Small Estate, is a legal document that demonstrates to the court that an estate qualifies as a small estate. It includes information about the deceased person and beneficiaries to the state.
The point of the affidavit is to attest to these facts and ask the court to authorize the executor of the estate to distribute the assets to the beneficiaries. If a will is present, the person distributing the assets must follow the instructions of the will.
When Can You File a Small Estate Affidavit?
A small estate affidavit is only allowed when an estate meets Tennessee’s threshold for a small estate, which is less than $50,000 in total assets. If the estate has more assets than that threshold, you cannot use a small estate affidavit.
Even if the estate meets the asset value threshold, you can’t file a small estate affidavit in cases that involve any of the below factors:
- A probate case has already been opened
- Certain cases that involve nonexempt real property, such as a home
(B) If the decedent died testate and it is determined that distribution of the small estate pursuant to the decedent’s will is different than distribution by intestate distribution, and it is desired that the small estate be distributed according to the decedent’s will, the person named as the personal representative in the decedent’s will shall either:
(i) File a petition for the probate of the decedent’s will as a muniment of title to the property of the decedent pursuant to § 32-2-111 and for the issuance of limited letters testamentary of a small estate; or
- A will is present that requires formal probate
Steps to File a Small Estate Affidavit
While the small estate affidavit is meant to streamline the process of dealing with assets left by the deceased, it’s not without its own processes and paperwork requirements. You’ll need to adhere to the proper timeline, gather the right information, and file the affidavit with the right court.
Wait the Proper Length of Time
First, you must allow the 45-day waiting period to pass. This waiting period begins on the day that the deceased passes away. The probate court won’t accept your small estate affidavit before 45 days have passed.
The Statute states:
(8) Upon good cause shown, the court may waive the requirement to wait forty-five (45) days before filing a petition for limited letters; and
At that time, you’ll also need to ensure that a personal representative hasn’t been appointed and that an estate hasn’t been formally opened. If someone else has already done this, you cannot file a small estate affidavit.
Value the Assets of the Estate
While you’re waiting, however, you could begin the process of gathering information about the value of the estate. You will need this information to document that the estate meets the requirements as a small estate.
Consider gathering information such as:
- A list of all bank accounts and other cash equivalents the deceased person owned and how much is in those accounts
- A list of all property that was owned by the deceased that is not exempt
- A list of any property or assets that you need professional assistance in valuing so that you can plan to reach out for help as needed
- A list of all creditors
You might realize during this process that the estate actually qualifies for what’s known as a very small estate. These are estates that have assets that only total $15,000 in value. In this case, you may be able to skip even the small estate affidavit.
Gather all Other Information Related to the Affidavit
Once the 45-day waiting period has passed, you’ll be able to complete and file the affidavit. You’ll need a lot of information to complete this process, including details of all the assets of the estate such as:
- What the asset is
- The total value of the asset
- Where the asset is located
- Details related to each asset, such as bank account numbers
- The identity of each creditor of the decedent, and the amount owing to each identified creditor
You’ll also need the legal name of the deceased and some basic details about their death, such as when and where it occurred. The paperwork must also list any creditors of the deceased and what is owed to them as well as the name and contact information for the deceased’s next of kin.
This is not a comprehensive description of the information you might need to complete the small estate affidavit. Other information may be required, and the details can vary from case to case.
Complete and File the Paperwork
Once the paperwork is complete, it must be signed. This typically requires a notary, so you may need to plan in advance for that. Then you can file the affidavit with the appropriate probate court.
This form is now called a Petition for Limited Letters of Administration of a Small Estate and Order. The limited letters must remain open and active until the first anniversary of the issuance of the limited letters.
Work With an Experienced Lawyer to Minimize Challenges
You may have gleaned from the information above that even the “simplified” process of the small estate can be somewhat complex. You need to gather a lot of information, and if that information isn’t correct, you could run into some setbacks once you start to file.
If your family member has passed on and you’re not sure what to do to settle his or her estate, consider reaching out to an experienced probate lawyer for guidance and help.
Even better, if you want to keep your future loved ones from shouldering this type of burden, take some time to engage in estate planning today. While you may not need complex estate planning for a modest amount of assets, wills and other documents can provide a lot of peace of mind for anyone.
Contact Crow Estate Planning & Probate at 931-218-7800 to schedule an appointment and speak to our legal team about your options and how we can help.