American
Estate
Planning
Attorney Directory
 ·  Legal Wills  ·  Living Trusts  ·  Probate Law  · 
Find an Estate Planning Lawyer Near You! Enter Zip Code:

Streamlining The Probate Process For Small Estates

Do small estates have to go through probate?
If the size of the estate is less than an amount set by state law, the estate may qualify for a simplified proceeding for small estates. The amount permitted can range from $5,000 to as much as $70,000 in some states. Depending on the state, there may be additional requirements as to who the surviving heirs are and what types of assets are involved. These proceedings can be completed with less paperwork, less need for professional assistance, more quickly and at less cost. If, for example, the decedent attempted to avoid probate and managed to retitle most of his assets to a revocable living trust or joint ownership (all of which pass on death without probate), small estate probate may be available as a simple solution to the few assets that were missed.

Assuming you are the executor, once you have assembled a balance sheet of the decedent's assets, call the surrogate's court to find out the maximum size estate that can qualify for a small probate proceeding. If the estate meets the size requirement, request the necessary forms from the court. Complete the forms and follow the instructions provided by the clerk.

You should also go to your local library and look up the table of contents for your state's probate statute. Look for "small estates," "summary probate, " "streamlined probate," "affidavit probate" or similar terms. You should be able to find the law. Many statute books are annotated with summaries of relevant cases; many even include sample forms. Be sure to look in the back of the book. Publishers update many legal books by periodically adding a new paperbound supplement stuck into a slot in the back cover.

Always have an estate attorney review any documents before you file them with the court or send them to others.

Filing an affidavit in lieu of probate
In many states, the small estate probate procedure is based on completing a document signed by the heirs, under oath ("affidavit"). This is the quickest and easiest approach, if available. Instead of having any type of probate proceeding, all that is required is the affidavit by the heirs claiming the decedent's property. These would be the persons named in the will or those people who would receive the property under state law if the decedent died without a will (intestate). The process should go smoothly if all the people named in the will, and any who would receive the assets had there not been a will, sign the affidavit agreeing to how the property will be distributed. If there are bumps in the road, consult with an estate attorney.

Once the affidavits are completed and filed with the surrogate's court, the heirs can use the affidavits to gain control over the decedent's assets, pay debts and transfer the remaining assets.

Summary probate for small estates
If the estate exceeds the dollar cap for small estates, or includes any assets that disqualify the estate for the small estate probate proceeding, state law may still permit some type of expedited proceeding, often called summary probate. For the states that permit this, a form (petition) will have to be filed, heirs and other interested parties given notice, and so on. The summary probate proceeding is a simplified version of formal probate. Because the rules, and even the availability, of summary probate differ from court to court, you should contact the appropriate court for sample papers and instructions. Also, review the information available at your local library.
Back to Top
Copyright © 2000-2002 American Estate Planning Attorney Directory. All rights reserved.

AEPAD is the American Estate Planning Attorney Directory.  While the information on this site deals with legal issues, it does not constitute legal advice. If you have specific questions related to information available on this site, you are strongly encouraged to consult an attorney who can investigate the circumstances of your situation and the particulars in your state.