Quick answer: A small estate affidavit is a sworn statement that lets the person entitled to a deceased person's property collect it without formal probate. To use it, the estate has to be under your state's dollar limit, a waiting period has to have passed, and no probate case can be open. In California and Arizona the affidavit for personal property goes straight to the bank or other holder with no court filing. Real estate usually needs a separate court process, and the limits and waiting periods differ by state.
On this page:
- What a small estate affidavit is
- Who can use it
- The steps
- What it cannot do
- Risks and responsibilities
- Check your state
What a small estate affidavit is
A small estate affidavit is a sworn statement, signed by the person entitled to a deceased person's property, saying that the estate is small enough and enough time has passed to skip formal probate. The person then gives it to the bank, the employer, the transfer agent or whoever holds the property. It is one of several ways to move property without a full court process, alongside beneficiary designations and joint ownership, which our guide on whether you need probate explains.
The procedure takes two basic forms. In some states the affidavit goes directly to the holder, with no court involved. California's statute lets the successor collect money, receive tangible personal property or have securities transferred without letters of administration. Arizona requires holders to deliver property once they are presented with an affidavit. In others, the sworn affidavit goes with an application to the court. Wyoming calls its version an informal distribution procedure for certain small estates, in which the court issues a decree after notices are given.
Who can use it
The exact tests are set by each state, but the statutes we checked share the same building blocks:
- A waiting period after the death. California requires that at least 40 days have elapsed, shown by a certified death certificate attached to the affidavit. Arizona's personal property affidavit requires thirty days.
- No probate case open. Both states require a statement that no personal representative has been appointed or, in California, that the representative consents in writing.
- A value under the state limit. The limit is a set dollar amount that changes over time. California's court help says its amounts are updated every 3 years. This guide does not quote the figures because they go out of date; the Small Estate Affidavit Checker shows your state's current limit.
- Being entitled to the property. The person signing has to be the successor entitled to it, whether by will or by law. Arizona also requires a statement that the funeral and last illness expenses have been paid.
How the value is measured differs. California's court help says to add up real and personal property that would go through probate, to leave out property held in a trust, jointly owned property and assets with a named beneficiary, and that you may not subtract the debts of the person who died. Arizona instead values personal property less liens and encumbrances. Because only probate property counts, which assets go through probate decides whether an estate qualifies. The Estate Value Calculator does that count for your state.
The steps
- Confirm the limit and the waiting period for your state, and that no probate case has been opened.
- List the property and its value, counting only what your state counts.
- Get certified copies of the death certificate. California's affidavit has to have one attached.
- Prepare the affidavit or declaration. California's statute lists what it must state: the decedent's name, the date and place of death, that 40 days have passed, that no administration is pending, that the value is under the limit, and a description of the property. It takes the form of an affidavit or a declaration under penalty of perjury.
- Present it to each holder with proof of identity. California requires reasonable proof of the signer's identity, such as a driver's license or passport. The statute lets the successor act on one or more particular items of property.
- Collect the property. Arizona's statute also has transfer agents changing registered ownership of securities, and the motor vehicle agency issuing a new title, on presentation of the affidavit.
Holders may have their own forms or extra requirements, so ask each one in advance. Timing matters as well: the waiting period comes first, and what you can collect then depends on the process. For how long the full court process takes by comparison, see how long probate takes.
What it cannot do
- Transfer real estate through the personal property affidavit. California's court help sends a home through a separate petition to the court, with its own value limit. Arizona has a separate real property affidavit that can be filed no sooner than six months after the death, in court, and that one has its own value cap.
- Be used when a probate case is open. The statutes we checked generally require that no administration is pending, so a case that has already started has to be finished through that case.
- Cover an estate that is over the limit. If the value is too high, the alternatives are formal probate or, if you are still planning, reducing what goes through probate. See how to avoid probate.
Risks and responsibilities
The affidavit is a sworn document, so a false statement has consequences. California's version is signed under penalty of perjury, and Arizona's real property affidavit acknowledges that a false statement may subject the signer to perjury penalties. The holder is protected: Arizona's statute says the holder is discharged as if it had dealt with a personal representative and does not have to inquire into whether the statement is true. The person who collects the property is not: they remain answerable and accountable to any personal representative or other person with a superior right. That is why it matters to be the right successor, to have the value right, and to pass the property on as the will or the law directs.
If a holder refuses an affidavit that meets the statute, Arizona lets the persons entitled bring a proceeding to compel delivery. For contested or complicated situations, legal help is worth having. And if the affidavit does not fit, how much probate costs shows what the full process involves.
Check your state
The dollar limit, the waiting period, the treatment of real estate and whether the process goes through a court or straight to the bank all depend on where the person lived. The Small Estate Affidavit Checker tells you whether an estate qualifies in your state, and the Probate Cost Calculator shows what formal probate would cost if it does not. Everything is at the probate calculators page, and our methodology explains how each rule is verified.