Small Estate Affidavit
A small estate affidavit can be used when the value of a decedent’s estate is $50,000 or less, not counting the value of a homestead and other exempt property, and the total assets exceed the total known liabilities of the estate.
It is filed with the Probate Court in the county where the decedent resided at the time of his death or any county in which he owned real estate. The affidavit must contain a list of all known assets and liabilities of the estate, the decedent’s family history and the identity of heirs. It must also be signed by all of the decedent’s heirs as well as two disinterested witnesses.
Once the affidavit is complete, it is filed with the probate court, which will issue an order approving the affidavit and order that all property owned by the decedent be to the heirs.
Small estate affidavits do not ordinarily transfer title to real property, except for the homestead. Therefore, if the decedent owned real property other than the homestead, a small estate affidavit would not work.
Affidavit of Heirship
An Affidavit of Heirship is not a formal adjudication. It is an affidavit outlining the decedents family history and the identity of heirs. When filed in the county clerk’s records, it evidences the change in title of real property.
This process does not involve filing anything in the probate court, but rather filing certain affidavits in the public records of any counties in which the deceased owned property.
While it is a cheaper alternative to a judicial Determination of Heirship, it does have some disadvantages. It does not pass title to the deceased’s property free and clear of alleged debts or encumbrances, and may not be recognized as a valid transfer of title by some entities such as banks and title companies. Also, the affidavit does not become prima facie evidence of the facts contained in it until it has been on record for five years.
Determination of Heirship
A Determination of Heirship is a formal judicial proceeding where a court makes a formal declaration as to the identity of the decedent’s heirs.
The Determination of Heirship proceeding can be expensive and time-consuming. It requires a filing of an application with the probate court, who is then required to appoint an independent attorney (at your expense) to investigate the identity of the heirs. Once that attorney has reported his findings to the probate court, the court will schedule a hearing to issue the determination as to the identity of the heirs.
At that hearing, the court will require two disinterested witnesses to testify to essentially the same facts required for the Affidavit of Heirship. The benefit of the Determination of Heirship is that there is a final court judgement as to the identity of the heirs.
Choosing which procedure is right for your situation depends on many factors. It’s always best to contact an attorney to help you decide which procedure is best under the circumstances.