Using a Small Estate Affidavit to Claim an Inheritance Without Probate
- posted: Mar. 18, 2021
- Estate Planning
Following the death of a loved one, a family often faces the costly probate process, which has a tendency to consume some of the estate’s assets and reduce the amount each heir or beneficiary receives. Fortunately, Arizona law allows assets of small estates to be distributed without going through probate.
A “small estate affidavit” can sometimes be used by a legal heir to claim a share of a deceased person’s personal property or real estate. A separate affidavit is required for each property type.
Personal property is a broad category that includes things like bank accounts, cars, furniture, jewelry and other transportable assets. As a legitimate heir, you can use a small estate affidavit if three conditions are met:
- The total value of the deceased person’s personal property is less than $75,000.
- At least 30 days have passed since the person died.
- The estate is not undergoing probate.
The personal property affidavit does not need to be filed in probate court. Instead, it is presented to the entity that possesses or controls title to the asset. For example, if you are using the affidavit to claim money in a small bank account, you would present the affidavit to the bank. To claim a car, you would submit the affidavit to the Arizona Motor Vehicle Department.
For real estate, the small estate affidavit can be used if these conditions are met:
- The total value of the deceased person’s real estate is less than $100,000.
- At least six months have passed since the person died.
- The estate does not have an active personal representative.
- Funeral costs and all the estate’s unsecured debts have been paid.
Unlike the personal property affidavit, the real estate affidavit must be filed in the probate court where the property is located, along with a copy of the death certificate and the deceased person’s will, if one exists. The affidavit must also be recorded with the county recorder’s office.
If the real estate in question had a mortgage on it when the owner died, the mortgage lender has the right to refuse to allow you to use the affidavit procedure. Also, some mortgages become due in full upon the transfer of the property, by death or otherwise. So, if a mortgage is involved, you should speak with a probate lawyer before attempting to use the small estate affidavit.
At the Law Firm of Joseph M. Udall, PLC we guide people through the Arizona probate process and help them avoid probate when possible. We would be pleased to discuss your unique situation and help you utilize a small estate affidavit option if it is appropriate for you. Please call 480-500-1866 or contact us online to schedule a free consultation. Our office is in Mesa and we serve clients throughout Maricopa County. Se habla español.