What is a Small Estate Affidavit?

Before I answer this question, I need to give some background information.

If your estate (everything you own in your name) is worth more than $150,000, California requires the estate to go through probate. Probate is the process where the government oversees the distribution of the estate. Like most things done by the government, this is not ideal. One of the biggest reasons to get a trust is to avoid probate: since the trust is considered its’ own entity, like a corporation, anything owned by the trust is not counted as part of your estate. (For probate purposes, anyway; it’s still counted when calculating estate taxes, but that’s a discussion for another article)

Avoiding probate does have some downsides – one of them is that you don’t get the official document from the court naming you as the person in charge of the estate. Banks and financial institutions like official documents, and they tend to be distrustful of complete strangers who walk in and declare themselves a trustee or executor without something official to back that claim up. Sometimes they’ll accept a copy of the will, the trust, a death certificate, and several forms of valid I.D., but that still doesn’t help people who are administering an estate with no will or trust.

Enter the small estate affidavit. This simple form is standardized, so you can get a copy off the Internet (link here). In this form, you state that you are in charge of the estate of the deceased person (“decedent” in legalese), that the estate is too small to qualify for probate, and you name the account that you are trying to get access to. You then notarize this form and present it to the bank, and they are required by law to accept it as valid – though not all bank employees know this, so you might still have some trouble. Many banks and financial institutions also have their own version of this form, which they prefer to use, so it may save time to ask for a copy of their form rather than using the form above.

One thing to note about the small estate affidavit is that you have to wait forty days after the decedent’s death to use it. It is not valid before then, and banks will not accept it if you try to bring it to them before the forty days have passed. You will also need to present them with a death certificate and valid I.D. – even with the form, you still have to prove that the person has actually died and that you are who you say you are.

If you are administering an estate or trust without a probate, you will likely use the small estate affidavit at least once. Hopefully this article has given you a better understanding of what it is and how it works. If you have questions, you are welcome to contact me at kaway@kawaylaw.com.

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