Using a Small Estate Affidavit to Transfer Assets in Estates with Less Than $100,000 in Probate Assets

Washington law permits the use of a small estate affidavit in certain circumstances. Before using a small estate affidavit, you should first ask whether the deceased person had less than $100,000 in probate assets. If they did, you can probably use this process. However, you should also ask whether they owned any real estate. If the answer is “yes,” then using a small estate affidavit may not be the best choice. While a small estate affidavit may be used for a decedent who had real property, the affidavit cannot be used to transfer title to the real property. Furthermore, the equity in the real property is used toward the $100,000 calculation. Therefore, it is rare when you could or would want to use the small estate affidavit process if your loved one died with real property. In those cases, you'll probably need a probate.

If you decide to use the small estate affidavit and present it to a person or financial institution that is holding the assets of your loved one, that person or financial institution is supposed to deliver the asset to you. The person or financial institution that held the asset will be discharged and released from any liability in the same way as if it had been dealing directly with the Personal Representative of an estate. The holder of the asset has no obligation to inquire into the truth of the material in the affidavit, however, they cannot ignore facts known to be untrue.

Even if the estate meets the financial threshold, however, other requirements need to be satisfied:

* You must be a “successor,” as that term is defined in the small estate affidavit statute. You are a successor if you are entitled to the asset in question under the Will of the decedent or under Washington’s law of intestate succession (RCW 11.04.015) if there was no Will. If you are a surviving spouse, you are also a successor at least to the extent of your community property portion of the asset being held.

* Your loved one must also have been a resident of the State of Washington at the date of death.

* No application or petition for the appointment of a Personal Representative or estate administrator is pending or has been granted in any jurisdiction.

* All debts of the decedent including funeral and burial expenses have been paid or provided for.

* You have given advance notice to all other “successors” of your intention to obtain the asset of the loved one and they have provided you written authorization to do so.

If you can satisfy all of these elements, you can submit a small estate affidavit to a person or financial institution holding your loved one’s assets. But there are a couple things to remember:

First, you must wait at least 40 days after your loved one has died before submitting the affidavit.

Second, you are required to mail a copy of the affidavit, along with the decedent’s Social Security Number, to the Washington State Dept. of Social and Health Services' Office of Financial Recovery, whose address is currently: P.O. Box 9501, Olympia, WA 98507-9501.

Even when all of the statutory requirements are met, the small estate affidavit process might be impossible or impractical to use. If you are not entitled to all of the assets, you must get written authorization from others who also have a right to the property. This may be impossible when another heir is uncooperative. Even with such authority, the family relationships may be so bitter that you should consider first whether you are willing to take the risk of acquiring the particular asset and then being answerable to the heirs for dividing it appropriately. You will likely need to pay bills before dividing it. Your disgruntled family members might accuse you of stealing some of the assets. Whether you have a cooperative family or not, you should keep good records of the assets you have received and bills you have paid. If the family relationship is too acrimonious, you should consider conducting a probate that will provide a more formal structure. Hiring a lawyer in this situation can avoid a lot of headaches and sleepless nights.

If you have questions about small estate affidavits or other aspects of the probate process, give us a call at 253.858.5434 to set up an appointment today.