Small Estate Affidavit for Estates Not More Than $30,000
Small Estates General Summary: Small Estate
laws were enacted in order to enable heirs to obtain property of the deceased
without probate, or with shortened probate proceedings, provided certain
conditions are met. Small estates can be administered with less time and
cost. If the deceased had conveyed most property to a trust but there
remains some property, small estate laws may also be available. Small
Estate procedures may generally be used regardless of whether there was
a Will. In general, the two forms of small estate procedures are
recognized:
1. Small Estate Affidavit:
Some states allow an affidavit to be executed by the spouse and/or heirs
of the deceased and present the affidavit to the holder of property such
as a bank to obtain property of the deceased. Other states require that
the affidavit be filed with the Court. The main requirement before
you may use an affidavit is that the value of the personal and/or real
property of the estate not exceed a certain value.
2. Summary Administration:
Some states allow a Summary administration. Some states recognize both
the Small Estate affidavit and Summary Administration, basing the requirement
of which one to use on the value of the estate. Example: If the estate
value is 10,000 or less an affidavit is allowed but if the value is between
10,000 to 20,000 a summary administration is allowed.
Delaware Summary:
Under Delaware statute, where as estate is valued at no more than
$30,000, an interested party may, thirty (30) days after the death of the
decedent, proceed to distribute the assets of the estate by the filing
of an affidavit requesting distribution of the assets of the estate without
a grant of letters of administration.
12 Del. C. § 2306. Distribution of decedent's property without grant of letters where estate assets do not exceed $30,000.
(a) The spouse of a decedent or any person who is a grandparent of the decedent, a lineal descendant of a grandparent of the decedent, the personal representative of any of the foregoing who may be deceased, or the guardian or trustee of any of the foregoing who may be incapacitated, or the trustee of a trust created by the decedent, or a funeral director licensed in the State, shall be entitled to the personal estate of the decedent for the purpose of making distribution thereof in accordance with the decedent's will or, if there be no will, with Chapter 5 of this title without awaiting the appointment of a personal representative or probate of a will when:
(1) No petition for the appointment of a personal representative is pending or has been granted;
(2) Thirty days have elapsed since the death of the decedent;
(3) The value of the personal estate of the decedent other than property described in subsections (b) and (c) of § 1901 of this title and other than jointly owned property, does not exceed $30,000;
(4) All known debts of the decedent are paid or provided for;
(5) The surviving spouse's allowance, pursuant to § 2308 of this title, has been paid, provided for, waived or has expired by lapse of time pursuant to subsection (b) of § 2308 of this title;
(6) Decedent did not own solely owned real estate located in Delaware; and
(7) There is furnished to any person owing any money, having custody of any property or acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right of the decedent an affidavit showing the existence of the foregoing conditions and the right of the affiant to receive such money or property or to have such evidence transferred for the purpose set forth in this subsection.
(b) Preference for receiving the personal estate of the decedent under this section for the purpose of making distribution thereof shall be given to the spouse, any child, any parent, any sibling, any grandchild or any grandparent of the decedent, or to a funeral director licensed in the State, in that order. There shall be no order of preference among the remaining persons or entities entitled to receive the personal estate pursuant to subsection (a) of this section.
(c) The next of kin of a decedent shall have the right upon the death of the decedent:
(1) To take possession of the decedent's motor vehicle or vehicles; and
(2) To enter any premises for the sole and exclusive purpose of removing therefrom clothing belonging to the decedent to be used for the burial or viewing of the decedent.
If no next of kin is available, a funeral director may have access to enter the premises for the aforementioned purpose of securing clothes only. The Register of Wills shall provide a form limited to facilitating action taken pursuant to this subsection. Such a form must be obtained prior to any person acting pursuant to this subsection.