Small Estate Affidavit

Idaho has a myriad of options available to individuals who have recently had a family member or a loved one pass away when it comes to dealing with their estate. In many instances the choices are decided based upon the kind of an estate the person had. For example, if an individual owns land or real estate in Idaho and in other states as well, the choices of how to deal with that land after that person passes away are fairly limited. In most instances, a regular probate will be required as well as an ancillary probate in each of the states where real estate is located.

When it comes to dealing with a small estate, things are much different. For over 70 years, our premier Idaho estate planning team of attorneys has assisted clients in determining what the best steps are for them when it comes to completing a probate for a loved one or family member who has recently passed away. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our team is highly skilled, has expert knowledge, and a great deal of experience in assisting clients with all of their Estate Planning and probate needs, including determining whether a small estate affidavit can be used.

The purpose of this article is to help you understand what a small estate is and whether or not a small estate affidavit could be utilized based on you and your circumstances. Our reason for doing this is to provide you with information that will help you make decisions about what steps you need to take after a family member or loved one has passed away.

Idaho defines a small estate as one that does not include any real estate such as a home or land. Additionally, to qualify as a small estate the statutes also require that the "fair market value of the entire estate of the decedent which is subject to probate, wherever located, less liens and encumbrances, does not exceed $100,000." Idaho Code § 15-3-1201(a)(1).

Essentially, to summarize the applicable statutes, a small estate is small. It is an estate that only has personal property in it. Personal property are things that can be touched and held such as cars, furniture, personal effects, and items such as guns, coin collections, jewelry, and so forth. Keep in mind however the dollar limitation listed in the statue. Even if all that is in a state has in it is personal property, a probate will still be required if the value of that personal property exceeds $100,000. That's how this statue got its name in being a small estate.

According to the statutes, the small estate affidavit can be used to avoid the time and cost of a regular probate. According to Idaho Code § 15-3-1201 et seq., after a family member or loved one passes away, an individual can use a small estate affidavit that specifically identifies them as the recipient of personal property owned by the decedent. The small estate affidavit has to have some specific language in it. According to the statute the language that must be in the affidavit is as follows:

• The fair market value of the entire estate of the decedent which is subject to probate, wherever located, less liens and encumbrances, does not exceed one hundred thousand dollars ($100,000);
• Thirty (30) days have elapsed since the death of the decedent;
• No application or petition for the appointment of a personal representative or for summary administration is pending or has been granted in any jurisdiction; and
• The claiming successor is entitled to payment or delivery of the property, including entitlement as a trust pursuant to a will of the decedent.

When a small estate affidavit like this is created, and all the other elements are satisfied, the individual must only present the affidavit to the third party who holds property or money that belong to the decedent. Based on the small estate affidavit, the third party is then required to turn the property or money over to the person presenting the affidavit. By doing this, the third party releases themselves from any liability associated with holding the property or money of the individual who passed away.

So what exactly is it that a small estate affidavit will not work. As is set forth above, a small estate affidavit will not be effective in transferring ownership interest in any kind of land or real estate including a home. Additionally, if the value of the person's estate is above $100,000, a small estate affidavit will not work. Furthermore, if it has not been more than 30 days since the decedent passed away a small estate affidavit is not effective. Finally, a small estate affidavit will not work if a probate has actually been started by somebody else for the individual who passed away. In this instance, the court will control the distribution of the property through the probate proceedings.

If you have questions about whether a small estate affidavit will work for you and your family we can help. We have assisted numerous clients and working through a small estate by using small estate affidavit. We are confident that we can help you too.

Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team. You can also email us directly at racine@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.