Small Estate Affidavit: Limits and Rules in Every State

Small estate limits in every state

The limit is the headline figure for each state's main shortcut; what it counts differs, so open your state for the details, the form and the law.

States marked (court) have no affidavit you can hand to a bank: Alabama, Connecticut, Florida, Georgia, Kentucky, Maryland, Massachusetts, New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, West Virginia. Their shortcut is a short court case.

What a small estate affidavit is

When someone dies, whatever they owned in their own name with no beneficiary normally passes through probate: a court appoints an executor, who collects, pays debts and distributes. For a small estate that process can cost more than it's worth, so every state offers a shortcut.

In most states the shortcut is an affidavit: the person entitled to the property swears that the estate is under the limit, that the waiting period has passed, that no one has applied to be executor, and who is entitled to what. A bank, broker or the motor vehicle office that pays on it is protected as if it had paid an executor, which is why they accept it. Some states call it a small estate affidavit; others call it an affidavit for collection of personal property, a small asset affidavit or a transfer by affidavit.

What counts toward the limit

Only property that would otherwise go through probate counts. That leaves out, in nearly every state:

• Accounts and policies with a named beneficiary: life insurance, IRAs, 401(k)s, payable-on-death bank accounts and transfer-on-death brokerage accounts.
• Property owned jointly with a right of survivorship, which passes to the surviving owner.
• Anything held in a living trust.
• Real estate with a recorded transfer on death or beneficiary deed, where the state allows one.

States differ on the rest. Some measure the value after mortgages and liens, others use gross value (Louisiana and Oregon do). Some leave out vehicles (Illinois, Alaska, Hawaii, Nevada, Utah count them separately) or the homestead (Texas, Arkansas). Your state's page says which.

How to use a small estate affidavit

1. List what the person owned in their name alone, with no beneficiary, and its value at the date of death. Check it against your state's limit.
2. Wait out the waiting period and confirm no one has applied to be executor or administrator.
3. Get the form. Many courts publish one; your state page links it. Fill in each heir or beneficiary and their share.
4. Sign it before a notary, and file it with the court first where your state requires that.
5. Give a copy to each holder with a certified death certificate. Each bank or company pays or transfers what it holds.
6. Pay the debts and distribute to the people entitled under the will or state law. Signing makes you responsible for doing this correctly.

The person's final income tax return is still due. The final tax returns guide covers it, and Form 1310 claims a refund when there is no executor.

When you can't use one

• The probate estate is over the limit, even by a little.
• The estate includes real estate and your state's affidavit covers personal property only.
• Someone has already applied to be personal representative.
• Heirs disagree about who gets what, or the debts are larger than the assets.
• In Texas, there is a will: the Texas affidavit is only for people who died without one.

Then the estate goes through probate. See how long probate takes in your state and what it costs.

Small estates and state inheritance tax

A small estate can still owe tax. Pennsylvania, New Jersey, Maryland, Kentucky and Nebraska tax inheritances based on who receives them, and none of them exempts an estate just because it is small. Pennsylvania's REV-1500 return is due 9 months after the death even when the estate settles by petition, and New Jersey banks may hold part of an account until a tax waiver is filed. Check the inheritance tax by state page before you distribute.

Related probate guides

• Letters testamentary: how executors get them, by state
• What is probate? How it works, step by step
• How long does probate take? Timeline by state
• Probate cost calculator: fees by state
• Probate court forms by state
• Transfer a car title after death, by state
• Executor checklist: what to do when someone dies
• Form 1310: claiming a deceased person's tax refund