All About Indiana Small Estate Affidavits

Video

Good morning. It’s Andy Stautz at Stautz Law. I am back for another talk about probate administration, specifically Indiana probate administration. Today’s topic is the small estate affidavit.  

What is a “Small Estate Affidavit”?

So the small estate affidavit is a tool that you can use to collect the property of a decedent (That is, that is someone who has died: a decedent.) in certain circumstances, without having to go to a court for probate, without having to open a formal estate, without having to hire a lawyer, necessarily.  

This is a really handy thing. You need to know about it because it’s often the right choice. For people who don’t have very much property when they die. So if client calls and they say oh. I’ve… You know, my dad died. My mom died. Oh. He didn’t have anything. It’s just $2000 in a bank account or, you know, it’s just his last Social Security check that he hadn’t deposited yet — you know whatever.  

Indiana Law of Small Estates

Where there’s not a lot of property, it doesn’t make sense to hire a lawyer and open an estate. Indiana has given us this nice law. It’s in the probate code, 29-1-8. Has all the rules on what the smallest estate affidavit is; when they use it.  

What is the Indiana Small Estate Limit?

The basic rule is the total value of the estate has to be less than $100,000. So that… I’ve referred to that in other videos, it’s an important number because that’s the “small estate limit.” For less than $100,000 in total property, you can use the affidavit procedure; if it’s above that, you have to open a probate estate.  

How to Use the Small Estate Affidavit

So how … then the next question, how is the small state affidavit easier? What is it?  

Well, it’s just a paper. It’s just a document you fill out and you know, so and so, this is their name, birthday, date of death. You know, here’s who I am. I’m the son. I’m the daughter. Whatever.  

You fill it out and then you take it to the bank and you say. “Give me give me the decedent’s bank account.” And. Or anyone else who’s holding. Personal property. Of the decedent, although bank accounts are by far the most common.  

Other Rules on Small Estates

There are a couple of other little rules: you know, you have to wait 45 days. You have to swear that you’ll distribute the property to the right people. (Oftentimes, that’s just whoever is holding the affidavit, but sometimes there are other heirs and you basically promise to divide it fairly.)  

Can You Use a Small Estate Affidavit for Real Estate?

And furthermore, and this is a big limitation, it applies by its terms to personal property. So, so things, money, moveable things, not real property. So not a house, not an apartment or condo, even if it’s less than $100,000. 

The small estate affidavit is just to get people to hand you the personal property. Real property goes by its own special rules.  

So that’s basically the overview. If you’re below $100,000, you’ve got personal property you need to gather. You should get this form, fill it out, take it to the people who are holding the property and get them to deliver it.  

And it’s called “dispensing with administration” or small estate administration because you don’t need to go to court. For anything.  

Small Estate Affidavit Forms and Resources

If you think this is your situation, you know you look online. Indiana Legal Help has a form. If you just Google Indiana Small Estate affidavit, you’ll find a form.  

You know you can hire me to put it together for you. And you know that that helps make sure it’s done right, but. It’s DIYable if you’re diligent. 

And what else should I say? I suppose the other thing is the small state affidavit is also used in conjunction with the Trust administration. A lot of times. So if I’m doing a probate avoidance plan. And a person puts all their assets in a revocable trust, their probate assets–the things that aren’t in the trust–are below the small estate limit, so we can use the small estate affidavit just to kind of clean up whatever is left that’s not in the trust.  

But that’s a deeper topic, so that’s the basics. Like I said, you could do it yourself. You can give me a call and do it for you, but you should know that it exists. And like I said, the code section is 29-1-8-1. If you want to read the law. Thanks and see you next time. Bye!