Small Estate Affidavit: Qualifications
- “Entire Estate Does Not Exceed $100,000”
- “Personal Property in the Estate”
- Decedent’s Debts Must Be Paid or “Provided For”
- Persons Entitled to Use the Affidavit
|A Small Estate Affidavit can be used ONLY:
- For personal property, AND
- If the net value of Decedent’s probate assets is $100,000 or less ($60,000 or less if death before June 6, 2006).
Source of Confusion: RCW 11.62.010, the statute enabling this Small Estate Affidavit, fails to give it a name. Consequently, it has come to be known by a variety of names, such as:
- A “Personal Property Affidavit,”
- A “Personal Property Transfer Affidavit,”
- An “Affidavit for Disposition of Personal Property,” and
- An “Affidavit for Distribution of Decedent’s Personal Property.”
This website calls it a “Small Estate Affidavit”
For a Washington-resident Decedent, if the value of Decedent’s entire estate does not exceed $100,000 (the “$100,000 Test”), then personal property in the estate may pass to its successors by Affidavit or Declaration. RCW 11.62.010
If there is no real property in the estate, then:
- The entire estate should be able to pass using this Affidavit procedure, and
- No probate proceeding should be necessary.
Caution: A Small Estate Affidavit may NOT be used:
- For a Washington non-resident Decedent or
- For a Washington-resident Decedent on whose behalf a Petition for Appointment of Personal Representative is pending or has been granted in any jurisdiction or
- For a Decedent who died insolvent (ie, having more debts than assets) or
- In the first 40 days after death or
- By a person who is not a “successor” of the Decedent, as defined in RCW 11.62.005(2) (see Paragraph D below).
|A Small Estate Affidavit CANNOT be used:
- For ANY real property, OR
- =If the net value of Decedent’s probate assets exceeds $100,000.=
B. “Entire Estate Does Not Exceed $100,000″
Note: The Legislature increased the maximum amount from $60,000 to $100,000 for Decedent’s dying after June 5, 2006.
The Affidavit procedure concerns only Decedent’s Probate Assets. So as for Decedent’s nonprobate assets, they are transferred through their own process and are not taken into account in the valuation for purposes of the $100,000 Test.
Furthermore, because the Affidavit concerns only Decedent’s (and no one else’s) probate assets, if Decedent is survived by a spouse, the surviving spouse’s one-half interest in their community property is also not included in the valuation.
Lastly, in probate, assets are valued according to their net, not gross, value. Consequently, any debt or encumbrance is taken into account — meaning that any value above Decedent’s equity interest in his/her probate assets is also not included in the valuation.
To summarize, the $100,000 Test concerns only:
- Equity interest in all his/her
- Probate assets (ie, probate assets regardless of whether they are personal property or real property).
|Even though a Small Estate Affidavit CANNOT be used to transfer ANY real property, the net value of any real property among Decedent’s probate assets must be included for purposes of the $100,000 Test.
C. “Personal Property in the Estate”
Although Decedent’s equity interest in real property is included in the calculation of his/her probate assets for purposes of the $100,000 Test, the transfer process itself is effective only for personal property and not for real property (eg, raw land and improvements to land, such as buildings attached to land). For purposes of the Affidavit, “personal property” includes both:
- Tangible personal property (eg, cars, boats, planes, furniture & furnishings, clothing, books, jewelry, etc.), and
- Intangible personal property (eg, cash, certificates of deposit, securities, stocks, bonds, notes, debt, licenses, certificates of ownership, etc.). RCW 11.62.005(1)
The legal requirements for the use of this Small Estate Affidavit procedure, especially regarding real property, can be confusing. To clarify the situation:
- Decedent’s equity interest in any real property among his/her probate assets must be included in the value of his/her probate assets for purposes of the $100,000 Test. Furthermore, if the value of all such probate assets, including the value of any such real property, exceeds $100,000, then this Small Estate Affidavit procedure cannot be used at all, even for any personal property among the probate assets, even if the value of the personal property does not exceed $100,000.
- If the value of all such probate assets does not exceed $100,000, then this Small Estate Affidavit procedure may be used. The questions are:
- What may it be used for?
Answer: Any and all personal property among the probate assets. If it is used for all the personal property among the probate assets, and the probate assets consist only of personal (and not real) property, then no probate proceeding should be necessary. And:
- Will a probate be necessary otherwise?
Answer: Most likely yes if Decedent held any real property at death unless the real property was not a “probate asset,” eg:
- Decedent is survived by a spouse, and the real property is not only community property but also subject to a valid community property agreement between them. In this case Decedent’s one-half interest in the property will pass according to the terms of the community property agreement, usually (but not necessarily) to the surviving spouse (RCW 26.16.120).
- Decedent held the real property in joint tenancy and was survived by another joint tenant. In this case Decedent’s interest in the joint tenancy “expires” upon his/her death, effectively increasing the surviving joint tenants’ relative shares in the property (RCW 64.28.010).
ie, held in trust for his/her benefit). In this case the beneficial interest will automatically pass to the successor beneficiary under the terms of the Trust.
Examples of the $100,000 Test
D. Decedent’s Debts Must Be Paid or “Provided For”
Before you may use a Small Estates Affidavit, Decedent’s debts, including funeral and burial expenses, must be:
- Paid — meaning that you or one or more other persons must pay them; or
- “Provided for” — meaning that you must have a reasonable plan for their payment, for example, there must be sufficient property to be claimed to pay Decedent’s debts, and when you take possession of the property claimed, you must pay Decedent’s debts before doing anything else with the property you receive.
E. Persons Entitled to Use the Affidavit
To use the Affidavit, one must be a “successor” of Decedent as defined in RCW 11.62.005(2):
- Anyone, eg, a beneficiary, entitled to the claimed property under Decedent’s Will, or
- Anyone entitled to the claimed property as an heir of Decedent, or
- Decedent’s surviving spouse to the extent of his/her one-half community interest in the claimed property, or
- The Washington Department of Social & Health Services to recover funds paid or expended for Decedent’s medical assistance, or
- The State of Washington to the extent of escheat property (ie, property passing to no other beneficiary, heir, or creditor).
A person whose only claim to the property is as a creditor is expressly excluded from being a “successor” (except for the State).
Question: Is the named Personal Representative under Decedent’s Will a “successor”? What if the PR is not also a Beneficiary (eg, Decedent names a friend or institution as PR and give his/her estate to his/her family)? Is such a PR “a person entitled to the property under Decedent’s Will” and therefore authorized to use a Small Estate Affidavit?
a href=”/small-estate-affidavit-proc/”> Small Estate Affidavit: Procedure