What Is a Small Estate Affidavit?

An affidavit is simply a statement made under penalty of perjury. If the estate in question is “small” enough, as determined by state laws, one can work with a lawyer to write an affidavit to potentially avoid triggering a probate proceeding. A small estate affidavit is just one of the many tools one can use in California and many other states to avoid a formal probate proceeding. The monetary threshold level to avoid probate court is different from state to state and tends to increase over time. In California, the estate will generally be considered small if less than $150,000 is at stake. However, there are special rules concerning real property versus a sum of money. When real property is involved, cases can become more complicated.

Common Issues with Small Estate Affidavits

One of the problems associated with a small estate affidavit is that many financial institutions, such as banks, or insurance companies have their own in-house affidavit forms. Although you may have worked with an attorney to carefully draft the small estate affidavit to meet the state law requirements, the financial institution will sometimes kick back the form and insist that their in-house form be used, regardless of how well drafted your document may be.
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What Do I Do First?

Your first step should be to contact the financial entity concerned and ask them if they have an in-house small estate affidavit form. Sometimes, you will be provided with this form, and in our experience, other times the financial institution will balk at the question and insist that you cannot avoid probate. If you haven’t already contacted a probate attorney, then now is the time!

Your attorney can help you determine if the value and nature of the underlying asset allows the use of a small estate affidavit. If it does, the attorney’s next step should be to write a pointed letter to the institution directing the them to state laws and firmly insisting that you may you use a small estate affidavit to avoid probate court.

If you do have to go through a probate proceeding, we can help. We serve the cities of San Francisco, Berkeley, Albany, Pinole, Crockett, Martinez, El Sobrante, El Cerrito, Vallejo and Richmond and the surrounding areas. Give us a call at (510) 724-2020 or contact us today.
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