What Is a Small Estate Affidavit?

One of the most common assumptions after someone dies is that their estate will have to be probated with the court.  However, only estates where the decedent had more than $75,000.00 worth of assets or owned real property require court involvement.  “Small” estates with a value of $75,000.00 or less can be collected using Affidavit for Collection of Personal Property instead of filing the estate for probate with the court.

What are estate assets?

Assets which have a named beneficiary are not considered estate assets requiring probate.  Beneficiary designated accounts are considered non-probate assets and are not counted toward the $75,000.00 threshold in determining whether an estate can be collected by affidavit.  Assets which are owned jointly with the person who died and a surviving owner are not considered a probate asset.  Assets which were only in the decedent’s name are considered probate assets.  If those assets total less than $75,000.00, then an affidavit can be used to collect the decedent’s estate.  Keep in mind that the $75,000.00 threshold includes assets owned anywhere, not just the state of Minnesota.  If the decedent’s estate is over $75,000.00 but their assets are held in different states, then an affidavit cannot be used.

What if the decedent jointly owned real property?

If another joint owner or owners survived the decedent, then a probate is not necessary so long as the real property was owned as joint tenants with rights of survivorship.  If the property is owned as tenants in common, a probate will be necessary for the decedent’s interest in the real property.  An Affidavit for Collection of Personal Property cannot be used to collect real property.

Who can use an affidavit to collect personal property?

The person seeking collection by affidavit is referred to as a “claiming successor.”  A claiming successor must have a legal right to the property being collected.  A personal representative, beneficiary, or spouse could be considered a claiming successor depending on the circumstances.  The decedent’s creditors are considered claiming successors.  If the decedent received Medical Assistance, Minnesota is considered a claiming successor with the right to collect an asset.  Keep in mind that the claiming successor is not necessarily entitled to the asset itself.  After collecting the asset by affidavit, the claiming successor must use the collected funds to pay estate expenses or distribute the assets to the person legally entitled to receive the asset.  Before distributing or using collected assets, the claiming successor must understand that they have a fiduciary obligation to distribute or use those funds according to Minnesota law.  A claiming successor may be liable to heirs, beneficiaries, surviving spouses and children or creditors for assets collected but improperly used or distributed.

When can the asset be collected by affidavit?

The claiming successor must wait thirty (30) days after the death of the decedent to collect an asset by affidavit.  A death certificate must be attached to the affidavit.  However, if a probate proceeding has been started in any county in Minnesota or any other state, an affidavit cannot be used to collect the asset.  Once a probate proceeding has been started, only the personal representative using their authority granted by the court can collect an asset.