Small Estate Affidavit of Succession and Avoiding Probate
Avoiding Probate with a Small Estate Affidavit of Succession
Many people wonder whether or not they have to go through probate when a loved one dies with a small estate. The answer is “yes” — there are alternatives to probate, and we at AZ Statewide Paralegal can help you with them.
Small Estate Affidavit of Succession for Real Property
Arizona law allows family members to use an “affidavit of succession” in cases where a person has died leaving less than $100,000 in real property value (such as a home or land) and less than $75,000 in personal property. Arizona Revised Statutes allows for successors (more commonly known as “heirs”) to file this affidavit in the court of the county in which the person was living at the time of death or in the county where the property is located.
There are specific requirements and processes to file this affidavit of succession for real property. In order to use the small estate affidavit of succession for real property, you must wait 6 months after the person has died. The affidavit must describe the property and what ownership interest the person who died had in the property. In the small estate affidavit of succession, the heirs must state that a personal representative has not been appointed or that an application for a personal representative is not pending.
A “personal representative” is also commonly referred to as an “executor.” According to the Arizona Revised Statutes, a personal representative may be an executor or an administrator, successor personal representative, special administrator, or another person who performs substantially the same function. In Arizona, a personal representative is appointed by the court. If there was a personal representative and that person was discharged, or if more than one year has passed since the closing statement on the estate was filed, it is still possible to use the affidavit of succession to real property.
The heirs must also state that the value of the real property is not more than $100,000 as of the date of death. The value of the property is determined by the full cash value of the property from the tax assessment rolls the year the person died. The value is not determined by the fair market value of the home or property. If, however, the property had a loan on it, the value is determined by the unpaid principal balance due on the debt as of the date of death. If the person who died had a partial interest in a property, then the value is based on what percentage was owned by the person who died.
In addition to the requirements above, the individual signing the small estate affidavit of succession for real property must ensure that all funeral expenses, expenses of last illness, and all unsecured debts of the person who died have been paid. The signers must also state that no other people besides those signing have a right to the property. In addition, there can be no federal or state estate tax due. Finally, the people signing the affidavit state the basis or reason for why they are entitled to the real property. We will discuss this further below.
Small Estate Affidavit of Succession for Personal Property and Motor Vehicles
The small estate affidavit for personal property can be used when the value of all personal property (clothing, jewelry, cars, cash, bank accounts, money owed to the person who died, etc.) is not more than $75,000. Thirty days must have passed since the date of death as certified in the death certificate. Under Arizona law the motor vehicle division will transfer title of a motor vehicle from the person who died to the heir(s) when you submit an affidavit of succession form, available through the Arizona Department of Transportation website.
If someone died and he or she is owed wages, salary, or other compensation for personal services, a surviving spouse can directly collect this money. The amount must be not more than $5,000 owed. The surviving spouse must also state that there is no application or petition for the appointment of a personal representative, the personal representative has been discharged, or it has been more than one year since a closing statement for the estate has been filed.
Small Estate Affidavit of Succession – Demonstrating Entitlement to the Property
When claiming personal or real property using the affidavit of succession, you will need to list how you are entitled to the property. The options include:
- You are named in the will of the person who died (attach a certified copy of the will).
- You are the spouse of the person who died.
- You are a child of the person who died and there is no surviving spouse, or there is a surviving spouse but he or she is not your parent and the deceased had separate or community property.
- You are the parent of the person who died and there is no surviving spouse or child.
- You are a brother or sister of the person who died and there is no surviving spouse, child, or parent.
- The person died without a will and you are the sole heir.
- The person died without a will and the people with equal or greater right than you have to the property have all assigned their entire interests in the estate to you (attach a copy of the documents they signed to this effect).
- The person died and left a valid will and the people with equal or greater right than you have to the property have all assigned their entire interests in the estate to you (attach a copy of the documents they signed to this effect).
- It is possible that there are multiple ways that you are entitled to the property. If this is the case, we would identify all of those in the affidavit.
The Effect of the Small Estate Affidavit of Succession
When we deliver a small estate affidavit to a person or agency (such as the MVD), the person receiving it is not required to inquire as to the truth of the statements in the affidavit. If the person to whom the affidavit is delivered refuses to pay or transfer the personal property, they can be compelled to turn over the property. If someone uses an affidavit to obtain personal property and there is a personal representative for the estate or another individual with a superior right to the property, the person using an affidavit to get property is accountable to the personal representative or the other individual.
The time following the death of loved one or family member can be challenging. AZ Statewide Paralegal offers a number of legal document preparation and filing services that can help you during this time. Preparing the small estate affidavit of succession for real or personal property is just one of the services we offer. We can also help you with a simple uncontested probate, formal probate, and complex probate. We are certified legal document preparers with exceptional case management services that can ensure your experience during this difficult time is as smooth and seamless as possible. Contact our office in Tucson, Phoenix, or Mesa today to start the process of your small estate affidavit of succession.