Small Estate Affidavit: Procedure
- Procedure for Using the Affidavit
- Effect of Presenting the Affidavit
- Use of the Affidavit by a Living Trustee
- Practical Problem of Using the Affidavit
- Filing the Affidavit with the Court
|To use this Small Estate Affidavit procedure, you will need:
- The Affidavit plus
- A copy of Decedent’s Death Certificate.
You must also send a copy of the Affidavit, along with Decedent’s Social Security Number, to the Washington Dept. of Social & Health Services, in Olympia.
Procedure for Using the Affidavit
- Complete a:
- Attach a copy of Decedent’s Death Certificate to your Small Estate Affidavit. To obtain a Death Certificate, see:
- Are there any other Successors? Example: Your father died leaving a $100 bank account and you and your brother are his only Successors. Consequently, you and your brother are each entitled to $50, half of its proceeds. For your Affidavit to be valid at all, you would be required to give written notice to your brother of your claim to the $50. Furthermore, if you were willing, and if your brother gave you written authority to do so, your Affidavit could claim the entire $100: your $50 plus the $50 on behalf of your brother.
- If you are not aware of any other Successor, then skip the following discussion and proceed directly to Paragraph 4 below.
- If you are aware of one or more other Successors, are you willing to claim any property on their behalf?
- If you are not willing to claim any property on their behalf, then mail a copy of your Small Estate Affidavit + Death Certificate to each of them, wait 10 days, and then proceed to Paragraph 4 below.
- If you are willing to claim the property on their behalf, then request their written authority to do so. If you and all other Successors are so willing, then have each of them sign a Declaration under Penalty of Perjury attached to the Small Estate Affidavit and then proceed to the next paragraph (on the understanding that you will account to all other Successors within the period stated in the Declaration under Penalty of Perjury).
- Present your Affidavit (with its attached Death Certificate and any Declarations under Penalty of Perjury) to the person in possession of the property claimed.
- Mail a copy of your Affidavit (with attachments), together with Decedent’s social security number (RCW 11.62.010(5)), to:
Office of Financial Recovery
Washington Department of Social and Health Services
PO Box 9501
Olympia, WA 98507-9501
Timing: After 40 days following Decedent’s death, and if there are any other Successors, after 10 days following notice to them of your claim.
Note: There is no requirement limiting the use of the Small Estate Affidavit procedure to a single document. Therefore, if you are dealing with multiple assets, then, depending on your circumstances, you may wish to use:
- One “omnibus” Small Estate Affidavit describing all of Decedent’s relevant assets and listing all of Decedent’s pertinent heirs or beneficiaries.
- A collection of separate Small Estate Affidavits, one for each of Decedent’s relevant assets, listing only that asset’s heirs or beneficiaries. One advantage of doing so is that the pertinent heirs or beneficiaries would learn only of the asset they were to receive. One disadvantage of doing so (besides having to prepare multiple documents) would be that each would require its own Death Certificate and notice to DSHS.
- Some combination of the above.
|Upon presenting your valid Affidavit to anyone in possession of the property to which you are entitled (eg, a bank or brokerage), you become entitled to its possession, and its possessor is required by law to transfer the property to you.
Effect of Presenting the Affidavit
Upon presenting a valid Affidavit:
- The Successor is legally entitled to take possession of the property specified in the Affidavit. RCW 11.62.010(1)
- The possessor of the property is legally required to transfer the property to the Successor unless the possessor knows any statement in the Affidavit to be false. RCW 11.62.010(1)
- The possessor is legally discharged and released to the same extent as if the transfer had been made to Decedent’s Personal Representative. RCW 11.62.020
- The possessor is not required to see to the application of the property transferred, to inquire into the truth of any statement made in the Affidavit, or to verify the payment of any estate tax liability. RCW 11.62.020
- Transfer agents of securities (eg, stocks, certificates of deposit, etc.) and governmental agencies required to issue certificates of ownership or license registration to personal property (eg, vehicles, trailers, boats, mobile homes, etc.) are expressly required by statute to change the registered ownership and issue new certificates of ownership or license registration, respectively, to the Successor. RCW 11.62.010(3)
If the possessor refuses to transfer the property, the Successor may seek a Court Order compelling it. RCW 11.62.020
Use of the Affidavit by a Living Trustee
This Small Estate Affidavit transfer procedure has merit for its clearly intended beneficiaries: Successors of a Decedent whose probate estate does not exceed $100,000. But it can also be used effectively in a variety of other situations. For example: A Decedent who used a Revocable Living Trust as his/her estate planning vehicle, but who forgot to transfer to the Trust personal property that qualifies for this transfer procedure, such as a $50,000 brokerage account, car, boat, etc. This modest transfer procedure, assuming Decedent had the requisite “pour-over” Will (“all assets at my death not already in my Trust I give to my Trustee”), could save Decedent’s Trustee at Decedent’s death from having to initiate a formal probate proceeding to get the errant property into the Trust.
D. Practical Problem of Using the Affidavit
Probably the most popular use of a Small Estate Affidavit is to access a Decedent’s bank or securities account. The practical (as opposed to legal) problem is that banks, brokerages, transfer agents, and institutions in general are used to transferring such accounts through a probate proceeding, in which the Personal Representative delivers a copy of his/her Letters to the institution and requests the transfer. That’s the method that institutions are familiar with, and they have come to see it as “the proper (and only) procedure” for making the transfer. Consequently, far too often, when a Successor presents a Small Estate Affidavit to an institution, the institution responds “We need Letters to make the transfer.”
How to respond? In a word, be persistent and play “broken record” (ie, repeat items 2 through 7 below over and over to the agent):
- To prepare for the transfer, download and print out a copy of the relevant statutes: RCW 11.62.010 and RCW 11.62.020.
- Include the copies in your written request or hand the copies to the agent and politely ask the agent to read them, especially RCW 11.62.010(1).
- If you are dealing with a securities transfer agent, politely ask the agent to read RCW 11.62.010(3).
- Politely inform the agent that your use of a Small Estate Affidavit complies with Washington law, and that Washington law does not require either a probate proceeding or the delivery of Letters for the transfer to be made.
- If further resistance is met, politely inform the agent that if the institution refuses to make the transfer, Washington law allows you to bring an action in Court against the institution to compel the transfer and for it to reimburse you for your attorney’s fees and costs to obtain a Court Order to Compel the Transfer.
- If further resistance is met, ask to speak to their manager.
- If further resistance is met, ask to speak to their legal department.
Be forewarned, so that you may properly prepare. In your author’s experience, the grand champions of resistance to Small Estate Affidavits are:
- Downtown branches of large banks (eg, Bank of America, US Bank, WaMu, etc.), and
- East coast (particularly New York) securities transfer agents.
- Filing the Affidavit with the Court ñ
The Court Clerk’s office will accept a Small Estate Affidavit for filing with the Court for a filing fee of $20. It is unclear what advantage or use one gains by such filing.
Sidebar: The Northwest Justice Project has an especially thorough and useful portion of its website dedicated to Transfers of Personal Property by Affidavit, which you may wish to visit to gain additional perspective on this process.