Probate for Small Estates

Many states allow "small" estates to bypass standard probate, saving considerable effort and cost.

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General Small Estate Definition

Different states define "small" differently, but it's important to understand that an estate may qualify as "small" even if it is worth millions of dollars.

In general, when determining whether an estate qualifies as "small", you sum only the values of assets that would normally go through probate, ignoring community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

A number of states also exclude additional asset classes such as a homestead in Texas, vehicles in California, and funeral expenses in Pennsylvania.

The bottom line is that it may be worth it to explore a "small estate" approach to settling an estate, even if at first glance the estate appears too valuable to qualify. Select a state above to see state-specific rules about small estate definition and available settlement approaches.

General Settlement Approaches

If the estate does qualify as small, there is often a waiting period, and then you can commonly use one of the following approaches (depending on state):

  • Small Estate Affidavit: Under this approach, you fill out a sworn statement concerning estate inventory and heirs, then use it to obtain possession of estate assets from their current custodians: no court is ever involved (depending on state) if everything goes smoothly. One drawback to this approach, however, is that not all current property custodians understand the process and may resist; another drawback is that it typically cannot be used if the estate owns any real estate.
    1. Determine whether the estate value is small enough to qualify
    2. Fill out a state-specific small estate affidavit and have it notarized
    3. Attach a copy of the death certificate and the will (if one exists)
    4. Obtain possession of estate assets by presenting the affidavit to current custodians of the assets
    5. For certain property (e.g., vehicles) you must also get the title transferred with the appropriate government agency
    6. Resolve any estate debts if appropriate
  • Summary Administration: Many states allow an abbreviated form of probate, in which an interested party submits documentation to the probate court attesting to estate assets, debts, and legal heirs, obtaining a court order in return allowing them to settle the estate according to a substantially simplified process. Summary administration is more involved than the small estate affidavit approach, but can provide increased legal and creditor protections for the executor and heirs.
    1. Apply for summary probate and get appointed as executor
    2. Use your court-appointed "Letters" to obtain possession of estate assets by presenting them to current asset custodians
    3. Resolve any estate debts if appropriate
    4. Distribute net assets to the heirs
    5. Submit a Summary Probate Closing Statement to the court
  • Other: Some states provide alternate ways of handling small estates, such as the CA Small Estate Set-Aside, the TX Affidavit of Heirship, the FL Disposition without Administration, and the Ohio Certificate of Transfer. Select a state in the above dropdown for specifics in your state.

The details of the above approaches vary quite a bit by state, so its best to select your state from the list at the top of this page and use those specific instructions.

Cautions

Even if the estate does qualify for one of the small estate treatments, you may want to go through probate anyway for the increased liability protections and protections from creditors it provides.

For example, creditors can take the heirs (or even the executor) to court if debts have not been satisfied and the heirs have inherited property that could have been used to pay the debts (see also Estate Debts and Claim Limitations).

The bottom line is that if even if the estate qualifies for a small estate treatment, you should strongly consider going through full probate if estate solvency is uncertain, or if you are concerned that the estate may become entangled in a lawsuit for any reason (e.g., a disgruntled heir).

See also General Probate.

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