Small Estate Affidavit ($100,000 And Under: Fill & Download for Free

Everyone (at least in a country that was once part of the British Empire) has a will written for them in the law.When you die without a will of your own, the law of intestacy applies and your money passes to heirs defined in the law of your state or country.Your question is inconsistent because you refer to “bank money” yet imply that there are no assets. Money is an asset.A spouse or children will inherit a person’s assets by operation of law. If there is no spouse or children, assets go to siblings. If no siblings, then the assets go to parents. Essentially, you move along the family tree until you find someone. There is always a relation, though it could possibly be quite distant.Obtain the person’s death certificate and in most jurisdictions you need only prepare an affidavit to secure small estates (under $100,000) from the bank—you rarely need a court order to get something like a bank account.For example, https://saclaw.org/wp-content/uploads/2015/01/form-affidavit-for-collection-of-personal-property.pdf

The word “probate” is derived from the Latin word “probare,” which means “to prove.” So what “probating a Will” means is to have the state, namely, a Court, typically in the state of the testator’s (ie, the Will writer’s) residence, formally determine and issue a Court Order that the document submitted as a Will has been proven to be a Will according to the law of that state, and that it has been proven to be the last Will of the testator (or course, that proof is subject to the documents then submitted to the Court —- it’s always possible that sometime later, somebody will contest the Will’s validity or offer a later Will —- Lord knows that happens, and I’ve been involved with a lot of them, including for Jimi Hendrix’ Will).Now, as for what to do with a testator’s Will following the testator’s death:Filing the Will with the Court. In WA, where I last practiced before I retired, WA law provides that a testator’s Will is required to be filed with the Court within a certain time after the testator’s death:Duty of custodian of will-Liability.Mind you, this is not saying that it is required to be offered for probate. Only that it is required to be deposited with the Clerk of the Court.Offering the Will for probate. In WA, the process for offering a Will for probate is spelled out as follows:Application for probate-Hearing-Order-Proof-Record of testimony-Affidavits of attesting witnesses.Note that this is entirely discretionary. I’ve filed lots of Wills with the Court that never get offered for probate, typically, because opening a probate estate for the testator’s assets is unnecessary. There may be no assets (insolvent estate). There may be assets, but the assets pass “outside of probate,” for example, because the assets are held in joint tenancy or payable upon death form, or because the assets are subject to a contract that provides that the assets pass at the testator’s death to named beneficiaries (life insurance, pension plans, retirement accounts, etc.) , or because the testator died married or having a registered domestic partner and all of the testator’s assets are community property passing to the surviving spouse or domestic partner.Probate is realistically practical only if the testator died owning assets that have value and are titled typically in his or her own name alone, and no other avenue is legally available to transfer those assets to the testator’s successors (heirs or beneficiaries).The process for offering a Will for probate is simple. At least in the King County (Seattle) area, where I’ve done thousands of these, one simply files with the Superior Court: the Will and a Petition for Probate of Will and Appointment of Executor, pays a filing fee ($240), and then walks the documents into the proper Courtroom and deposits them and a proposed Order Admitting Will to Probate and Appointing an Executor with the Judge’s Clerk. In time, the Clerk calls your case, you approach the Judge and answer any questions he or she may have, and then the Judge signs your Order and hands it down to you. You then file the Order with the Clerk of the Court, who then prepares a document called “Letters Testamentary,” which states that the Court admitted the testator’s Will to probate and appointed you as Executor of the testator’s Will and authorizes you to act on behalf of the testator’s estate. You then obtain from the Clerk certified copies of your Letters, and it is those Letters (not the Will itself) that you show to anyone, such as a bank, that entitles you legally to act on behalf of the estate, for example, to close out and withdraw any money in an account at that bank held in the testator’s name.A formal probate proceeding may not be needed even if the testator died owning assets that have value and are titled in his or her own name. WA has a probate avoidance process for small estates, known under various names, including a Small Estate (or Personal Property) Affidavit:Disposition of personal property, debts by affidavit, proof of death-Contents of affidavit-Procedure-Securities.The “problem,” however, with a Small Estate Affidavit is that it is only good for personal (not real, ie, land, homes, etc.) property, and that the value of the entire probate estate (subject to some exceptions) cannot exceed $100,000. Consequently, if the testator’s estate contains any real property subject to probate or if valued in excess of $100,000, a Small Estate Affidavit typically cannot be used to avoid a probate proceeding.OK, OK, the foregoing has a lot of “ifs, ands, and buts” and is probably a whole lot more than you ever wanted to know (hey, I’m a lawyer, and it’s my job to know this stuff) —-Bottom line:It is not mandatory (that is, legally required, at least typically) to probate a Will.It is necessary (that is, practically required) to probate a Will in some circumstances, typically, where the Will’s testator has died owning property titled in the testator’s name alone and that has value, and no other simpler, less expensive, legal alternative exists for transferring those assets to the testator’s successors.Now, two other relevant but pickey points:A will names or nominates an Executor. Typically, that person has no duty or responsibility or legal authority to serve or take any action on behalf of the testator’s estate; for example, he or she may decline to serve for any or no reason at all. In order for that named Executor to gain legal authority, he or she must be appointed by the proper Court —- that is one of the purposes of opening a probate proceeding, to obtain legal authority for that named Executor to act on the testator’s behalf.All of the above deals with a testator who has made a Will. If someone dies without a Will (the majority of my cases) and owns assets titled in his or her name, how are those assets transferred? Virtually, the same way as above with the following exceptions:Without a Will, there is no named Executor. Typically, the relevant state law will provide a hierarchy of the Decedent’s relatives who are authorized to bring a probate proceeding for the Decedent’s estate, and if no such person acts within a certain period of time, anyone (with some exceptions, for example, no felons) may do so.Instead of an Executor of the Will being appointed, an Administrator of the Estate will be appointed.Typically, most Wills “waive Bond,” to secure that the Executor will act faithfully. Typically, the Court will require an appointed Administrator to post a Bond, to provide security that he or she will act faithfully.Instead of the Court’s issuing Letters Testamentary to an Executor, the Court will issue Letters of Administration to the Administrator.Instead of the testator’s assets ultimately being distributed to the testator’s beneficiaries under the Will, the Decedent’s assets will be distributed to the Decedent’s heirs at law, whose identities and relative shares are determined by the laws of the relevant state.Richard Wills, retired probate attorney licensed in CA and WA