After a loved one has passed, there are many steps and considerations to make. If they have a trust, you must administer the trust. If they have a will, you may need to probate the will. If they died without a will, you may need to probate the estate. However, in some circumstances, probate and administration are not a necessity. Take, for example, someone who has passed with little to no assets, i.e. a small savings account or life insurance policy.
When a person’s estate is small, moving their property may not require the intervention of a court. Most states have Small Estate Distribution Alternatives. In New Mexico, we have what’s called a Small Estate Affidavit.
The Small Estate Affidavit can be used to collect or transfer the personal property of a decedent if: (1)thirty (30) days have passed since the death of the decedent, (2) the value of their entire estate is less than $50,000, less liens and encumbrances, and (3) no application for personal representative is pending or has been granted in any jurisdiction. NMSA § 45-3-1201.
The Small Estate Affidavit will typically require the following information:
- Name of the decedent;
- Name of the person filling out the affidavit (aka affiant);
- Address of the affiant;
- Relationship of the affiant to the decedent;
- Date of death of the decedent;
- A certified copy of the death certificate attached to the affidavit;
- Acknowledgement that the estate is less than $50,000;
- Acknowledgement that more than thirty (30) days have elapsed since the death of the decedent;
- Acknowledgement that there is no pending probate or appointment of personal representative;
- That the affiant is a successor has a rightful claim to the property at issue;
- The signature of the affiant; and
- The certification of a notary.
Once signed and filled out properly, you can take the Affidavit to the bank or other financial entity to move the funds of the decedent. All financial institutions have their own rules of acceptance and submission for these forms. You should verify with the institution the ways in which you can submit the Affidavit for a claim. There may be additional information or documentation you must provide, and others may have internal rules for acceptance. For example, some financial institutions may not accept co-affiants.
Likewise, different states have different processes to follow. In your state, it might not be called a “Small Estate Affidavit,” it might be called something else. Check with an attorney in your area to see if your state has something similar. If you are uncertain of anything, we always recommend that you contact an attorney in your area to get clarification.
Small Estate Distribution Alternatives are just one of the ways that someone can move the property of a decedent. These tools are useful but limited, and they may not apply to all small estates. You cannot use a Small Estate Affidavit unless you have a rightful claim to the funds (i.e., you are a beneficiary). You should not use this form if you are already going through probate, and/or you are already appointed the personal representative for the estate. This affidavit should not be used to move real estate even if the value of the real estate is lower than the allotted amount. If you think a Small Estate Distribution Alternative is something that you may need, or if you have questions, we recommend you speak with a probate attorney in your area or give us a call! We have probate attorneys ready to answer your questions.
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