Small Estate Affidavit
A small estate affidavit,
also known as an Affidavit for Transfer of Personal Property, allows an heir to transfer or claim the estate’s assets free of probate, provided that the net value of those assets qualifies for small-estate treatment.
To qualify, the value of the decedent’s total personal property (e.g., cash, bank accounts, securities, business interests, vehicles, and other non-real estate assets), minus any liens or encumbrances on those assets, must be $75,000 or less.
The small estate affidavit cannot be utilized until at least 30 days after the decedent’s death.
The “Small Estate Affidavit(s) for Transfer” provided by Maricopa County Superior Court provides a good example of affidavits used throughout Arizona.
Real Property Transfers
If the decedent was the sole owner of a parcel of real property (i.e., the property was not jointly owned with survivorship rights) and had not created a
beneficiary deed (which would trigger an automatic transfer to an intended recipient), the disposition of that property would likely be subject to probate.
However, similar to the small estate situation described above, real property transfers can be accomplished outside of probate, provided the net value of the parcel is $100,000 or less. In this case, “net value” equals the total assessed value less the value of any liens or other encumbrances.
See “Affidavit for Transfer of Title to Real Property,” Maricopa County Superior Court.
In Arizona, such an affidavit cannot be filed until at least six months after the owner’s death.
Filing with the Court
An Affidavit for Transfer of Personal Property does not have to be filed with the probate clerk, and it can be produced directly for the third-party institutions that control the decedent’s assets.
In contrast, an Affidavit for Transfer of Real Property does have to be filed, along with a certified copy of the death certificate, and a copy of the will (if any). Once processed by the probate clerk, the real estate affidavit is then recorded in the county where the property is located.
A Workaround, Not a Plan
In most cases, affidavits such as those described above provide a fallback option, for personal representatives or other interested parties, in cases where the decedent did not properly title or otherwise plan for the disposition of their assets.
The use of such documents is an indication that the decedent did not exercise the most prudent level of planning. In nearly all cases, properly drafted wills, trusts and other estate planning documents and beneficiary designations are the best way to avoid probate and ensure the smooth transfer of personal and real property after death.
If you are uncertain as to the ownership status of any of your assets – whether held personally or in a trust – scheduling a review with
Ron Adams or
Ryan Scharber can provide certainty and peace of mind.
