Small Estate Affidavit Procedure
Posted Saturday, June 26, 2010 by John S. Palmer
If a decedent’s probate assets are $100,000 or less, consisting only of tangible or intangible personal property (i.e., no real estate), the property may be transferred by affidavit. Under this procedure, any person owing money to the decedent, or having possession of his or her personal property, may pay the funds or deliver the property to a person entitled to the property under the decedent’s Will or, if there is no Will, under the laws of intestate succession, upon receipt of proof of the decedent’s death and an affidavit stating:
- The decedent was a Washington resident on the date of his or her death;
- More than 40 days have elapsed since the decedent’s death;
- No application or petition to appoint an executor of the decedent’s estate has been filed in any jurisdiction;
- All of decedent’s debts have been paid or provided for;
- The claimant gave at least 10 days’ notice to all other heirs of the decedent of his or her intent to claim the property; and
- The claimant is either personally entitled to the property or is claiming it on behalf of all of those entitled to it.
A person holding property of the decedent is discharged of any liability for delivering the property to the claimant to the same extent as if such person had dealt with an Executor of the decedent’s estate, unless the person had actual knowledge that any statement in the claimant’s affidavit was false.
If more than one affidavit is presented, the property holder may deliver the property to the claimant who first presents him or her with the required affidavit, or may ask a court to determine what to do. If the property holder refuses to deliver the property when presented with a proper claim, the claimant may obtain a court order compelling delivery of the property.
This procedure may be used to transfer bank accounts, securities, and other tangible or intangible personal property, provided the total value of the decedent’s probate estate is under the $100,000 limit. Nonprobate assets and a spouse’s share of community property assets do not count toward this limit; therefore this procedure may be useful in cases where most of a decedent’s property (and all real estate, if any) were passed on by nonprobate transfers.
This small estate affidavit procedure may be used even if the decedent had a Will, but the original Will must still be filed with the court by the person having custody or control of the Will within 30 days of learning of the decedent’s death. Failure to do so can render the person with custody or control of the Will liable for any damages suffered by others due to his or her failure to act.
If you have any questions or would like to schedule an appointment, please call us at (425) 455-5513, toll free at (877) 455-5513, or info@palmerlegal.com.