When a Missouri resident dies leaving only a modest estate, the personal representative may file a small estate affidavit.
What Is a Small Estate Affidavit?
In Missouri, a small estate comprises property valued at $40,000 or less (after debts are paid) when the owner passes on.
As a matter of policy, the state of Missouri does not want to have county Probate Courts filled with small cases, so they have made special procedures for small estates so that such cases can be handled more quickly, affordably, and efficiently. Small estates get express-line treatment.
The affiant (the person who submits the affidavit) is typically a family member—a legal heir under the state distribution laws, or a named beneficiary in the will.
The probate court will review the small estate affidavit. Upon approval, the court will issue a certified order, allowing for the efficient collection and distribution of assets.
Is Probate Required for a Small Estate?
By filing the affidavit, the affiant can avoid full, formal probate. With a simplified probate process, the typical small estate usually takes about two months to close. In contrast, regular probate takes no less than six months, often taking a year or more to complete.
Unless the value of the small estate’s assets is less than $15,000, publication in the newspaper is required, which your attorney can take care of. Once the case is complete, the affiant can gather and/or liquidate the assets and divide and/or distribute the assets among the beneficiaries, which is done outside of Court supervision.
If any of the assets that make up the small estate have loans or liens against them, the affiant will need to see that such liens are paid before distribution of the asset(s) to the heirs, or the heirs may inherit such assets subject to the still existing liens. Distribution occurs according to the decedent’s will—or to heirs under state law, if there is no will.
How Do You File a Small Estate Affidavit?
Once the small estate affidavit is drafted and signed in front of a notary, it must be filed with the Probate Court in the county of the residence of the deceased person. This would be Greene County, for example, if the person died in Springfield, Ash Grove, Fair Grove, Strafford, Republic, or Willard, Missouri.
You will need a copy of the death certificate, and the Last Will and Testament; or if no will exists, you will state this in your pleadings. You will also need the proper filing fees, and there are several other smaller formalities that will need to be observed. If there is real estate, you will need proof of the value of the home and the amount of any loan, and there are typically a few different methods that a county Probate Court will accept to prove valuation, which may include a letter from a realtor, an appraisal, or in some counties, the county tax appraisal.
Should a Lawyer Assist in a Small Estate Affidavit?
An attorney can guide you through the probate process and make sure your small estate affidavit meets all legal requirements—a process that could include such things as:
- Admitting a Last Will and Testament into evidence in the Probate Court, if there is a Will.
- Identifying the legal heirs of the deceased party, and locating them.
- Identifying what assets need to be probated, and which do not.
- Obtaining a bond that insures the value of the estate, or a bond waiver.
- Advice on paying the deceased person’s funeral and burial expenses.
- Referral to a CPA or tax professional regarding payment of taxes and addressing tax issues.
- Ensuring that the notice to creditors appears in the newspaper for two consecutive weeks.
- Creating inventories, appraisals, and identification details for parties holding the assets. These assets can include bank accounts, stocks, and insurance policy information, as well as vehicles, gold, jewels, and coins, and safe deposit boxes. Small estates may include real estate.
- Creating a list of beneficiaries’ names, addresses, and other identifying details, and relationship to the decedent, and the facts establishing them as beneficiaries to specified assets.
- Overseeing the disposition of co-owned real property, and real property that will pass to beneficiaries. This starts with the retrieval of the property’s full legal description, current valuation, and mortgage information, if any.
Finally, the task involves liquidating property as needed to distribute value among multiple beneficiaries. If the deceased person left no will, any assets remaining after debts are paid must reach the appropriate heirs under state law.
Are There Other Ways to Probate Small Estates?
Yes. If there is a small amount of assets “stuck” in the name of the decedent, there are other probate avenues to think about. Surviving spouses and children can explore other probate procedures such as the Refusal of Letters by the surviving spouse or children under the Missouri Statutes. There is also a Refusal of Letters in Favor of a Creditor, if the decedent owed you money..
Our firm can counsel you whether the small estate affidavit applies to your situation, and whether it is indeed the best way to proceed under the circumstances. We also can advise our clients of all the documents that will be necessary to gather, and make sure all filing requirements are met.
Even Small Estates Are Challenging. Call on Us for Help.
Our Springfield, Missouri law firm guides clients through all types of probate cases, including the small estate affidavit process. Contact us today to get started.