Using a Small Estate Affidavit to Avoid Probate

Did you know that when you die, your heirs and beneficiaries may be able to use a small estate affidavit instead of a probate to transfer your assets?

While small estate affidavits are very useful, there are some limitations on when affidavits can be used and who can use them.

You can think of your property falling into three buckets. The first bucket holds any assets that you may have put into a trust. The second bucket holds assets that automatically transfer to a beneficiary upon your death, such as a retirement account, life insurance death benefits, a bank account with a pay on death provision, or a transfer on death deed. The third bucket holds all of your assets that don’t fit into either of the first two buckets.

While the trust assets in the first bucket get distributed according to the trust’s provisions and the assets in the second bucket get automatically distributed to the designated beneficiaries, a probate is usually necessary to transfer the assets in the third bucket.

In a probate, the court appoints an executor to manage your estate and gives that person the authority to execute documents to transfer your assets to your beneficiaries. While probate works well in most situations, sometimes the amount of assets is small enough that the cost of a probate just isn’t appropriate.

In these cases, a small estate affidavit might be the way to go. To use a small estate affidavit, your “successor” presents the affidavit to a person who either owed you a debt or who is holding property that belonged to you and demands that the person pays the debt or surrender the property.

While small estate affidavits are very useful, there are some limitations on when affidavits can be used and who can use them. The first limitation is that only your “successor” can use an affidavit. A successor is either (1) a beneficiary under your will, (2) one of your heirs at law, or (3) your surviving spouse or domestic partner if community property is involved. The State of Washington can also use an affidavit to seek payment of certain liens against your estate and to claim property that defaults to the state because you have no heirs.

If there is more than one person who qualifies as a successor, the person actually making the claim has to swear in the affidavit that he or she has given ten day’s written notice to the other successors to let them know what is being claimed and whether the successor is claiming it on his or her behalf or on behalf of the rest of the successors. If the successor is making the claim on behalf of the other successors, he or she also has to swear that the other successors have given written permission for the successor to make the claim on their behalf.

Along with the limitations on who can use a small estate affidavit, there is also a limitation on when an affidavit can be used. To start with, an affidavit can’t be used if a probate has been opened for your estate or someone has filed a petition to open a probate. In addition, a small estate affidavit can only be used if (1) you were a Washington resident when you died; (2) at least forty days have passed since your death; (3) all of your debts (including funeral and burial expenses) have been paid or provided for, and (4) and your probate assets (i.e., assets in the third bucket) total no more than $100,000. Finally, a small estate affidavit can’t be used to transfer real estate.

While small estate affidavits can’t be used in all situations when they can be used they provide a viable alternative to probate.