Small Estate Affidavits

By Abigail Neal, Scottsdale Probate Attorney

If a person hasn’t taken some planning measures to avoid probate before they pass, probate will usually be required to transfer their assets after passing.  However, Arizona law provides for an exception to the probate requirement for “small estates”.  In Arizona, a small estate is one having $75,000 or less in personal property (less encumbrances) and/or $100,000 or less in real property (less encumbrances).  If an estate qualifies as a small estate, a probate proceeding may not be required and the property may be able to be transferred using a small estate affidavit.

Preparing a Small Estate Affidavit

Just because the estate is small does not mean that nothing needs to be done.  When administering a small estate, a small estate affidavit will need to be prepared in order to transfer assets.  An small estate affidavit for the transfer of personal property is different than an affidavit to transfer real property.

Personal Property

A small estate affidavit for personal property is used to transfer a deceased person’s personal property like clothing, furniture, small sums in bank accounts, etc.  This affidavit needs to state who is supposed to take title or possession of the property.  Also, if other people would have the same or greater priority of inheriting the deceased person’s property, those persons would need to sign and assignment which assigns their interest in the personal property to the person completing the small estate affidavit.  These assignments, along with a copy of the will (if there is one) needs to be attached to the affidavit. A small estate affidavit for personal property needs to include:

A.  The name of the deceased, when they passed and the county in which the person lived when he or she passed;
B.  That 30 days have passed since the person died;
C.  The relationship between the deceased and the person completing the affidavit;
D.  That no probate is currently pending in any state nor has a personal representative been appointed (or if one was appointed, that the PR has been discharged or the estate has been closed for more than one year;
E.  That the value of the personal property does not exceed $75,000;
F.  The name of the person taking title to the property and why the person is entitled to the property;
G.  If anyone else has an interest in the property (get assignments as necessary);
H.  Whether there was a Will (a copy needs to be attached to the affidavit);
I.  A description of the property, including the location and value; and
J.  A list of the debts owed to the deceased person (if any).

This affidavit does not need to be filed with the court.  Instead, it only needs to be presented to the persons or entities holding the deceased person’s property.  Learn more about the Arizona small estate affidavit for personal property and my fees to prepare small estate affidavits.

Real Property

A small estate affidavit for real property is a little more complex than the affidavit for personal property.  This affidavit needs to state:

A.  The name of the deceased;
B.  When they passed (must be 6 months prior to filing the affidavit – attach a certified copy of the death certificate);
C.  The legal description of the property;
D.  That no probate is currently pending in any state nor has a personal representative been appointed (or if one was appointed, that the PR has been discharged or the estate has been closed for more than one year;
E.  The value of the real property does not exceed $100,000;
F.  The name of the person taking title to the property and why the person is entitled to the property;
G.  If anyone else has an interest in the property (get assignments as necessary);
H.  Whether there was a Will (the original needs to be attached to the affidavit);
I.   That the final expenses of the deceased have been paid and no taxes are due.

This affidavit needs to be filed with the probate court.  Once it has been filed and approved, you will need to obtain a certified copy of the affidavit to record with the appropriate county recorder.  Once the certified copy of the affidavit has been recorded, title to the property has transferred into the name of the heir(s).  Learn more about the Arizona small estate probate exemption for real property and my fees to prepare, file and record the small estate affidavit.