Can I Skip Probate?

Small Estate Affidavits:  Can I Skip Probate?

The Small Estate Affidavit process is like a travel-sized toothbrush—it is inexpensive and lightweight, but it is not nearly as good at the job as the Sonicare your dentist would recommend.  When a loved one leaves behind a relatively small estate, the Small Estate Affidavit process is a tool that can be used to expedite the process of moving assets into the name of the person or people entitled to inherit.  If it is not completely effective, it may still be necessary to open a probate in addition to the work that has already gone into preparing the Affidavit.  For that reason, it is wise to carefully consider whether the Small Estate Affidavit can really achieve the goal of making things faster and easier for the specific job at hand. What is the Small Estate Affidavit Process? In Washington, Chapter 11.62 RCW allows for “successors” to directly claim property that would otherwise be subject to probate, without the need to open a probate matter in court.  Across jurisdictions, there are 34 states that allow for some variety of direct Affidavit procedure as an alternative to probate.[1] Because each state is unique, many national banks, brokerages, and other financial institutions are hesitant to distribute funds through this process, leading many clients to ultimately find it simpler to open a probate when funds are held by a recalcitrant institution. a. What are the Requirements for the Estate? The first questions should be:  “Is the entire estate worth more than $100,000?” and “Does the estate include any interest in real property?”  If the answer is “yes” to either of these questions, it is unlikely that a Small Estate Affidavit will work. The process may only be used when the value of the entire probate estate, less liens and encumbrances, is worth less than $100,000.[2]  This may come up more often when a decedent was either relatively young or relatively old.  It may also come up when a decedent had a Revocable Living Trust but one or more smaller assets were never put into the name of the Trust. Real property cannot be transferred using the process, but its value is counted toward the $100,000 limit if it is subject to probate.  Practically speaking, there are few times when an estate includes real property in Washington but when a Small Estate Affidavit could nonetheless be used to transfer other property.  The exception may be when the only real property is a property with relatively little equity owned as community property (for which the spouse could use a lack of probate affidavit), and there is some relatively small personal property requiring transfer. [3]  This particular set of circumstances is possible but uncommon. In the limited situations where the statute permits the Small Estate Affidavit process, you can consider it as a way to save legal fees and the hassle of opening a probate.  However, it is sometimes necessary to abandon the process and proceed with probate, resulting in more costs and time than simply starting with a traditional probate.  When the assets add up to more than $100,000, or when a financial institution refuses to transfer assets based on a Small Estate Affidavit alone. b. Who can use the process? Under RCW 11.62.050(a), “successors” are those who are entitled to the claimed property if one or more of the following apply:

  1. They are named in the terms of the decedent’s Will;
  2. They are an heir by the laws of intestate succession;
  3. In the case of a spouse or domestic partner, they are entitled to their undivided one-half interest in community property;
  4. The “successor” is the Department of Social and Health Services seeking Estate Recovery for medical assistance provided to the decedent when he or she was over 55 (RCW 43.20B.080); or
  5. The “successor” is the State, in the case of escheat property.

The State of Washington, when in the role of “successor” by the terms of the latter two categories, can use the process solely by reason of being a creditor to the estate.  Otherwise, creditors may not claim to be “successors” solely because of debt owed to them by the decedent.  RCW 11.62.050(b). c. How to use the Small Estate Affidavit Process Although the process is intended to simplify the distribution of small estates, the devil is, as always, in the details.  The process can be started as early as forty-one days after the decedent’s death.  RCW 11.62.010(1). However, all other “successors” must first receive ten days’ notice (by personal service or mail) before the affidavit may be signed, which may slow things down, especially if the client is unsure of the names or locations of other successors. RCW 11.62.010(2)(h).  If someone else is appointed as Personal Representative, the process cannot be used.  RCW 11.62.010(2)(e).  The successor must also state that the debts of the decedent have been provided for, and that the estate subject to probate is worth less than $100,000; this can be very difficult if your client isn’t privy to the all of the finances of the decedent, and has no way of knowing if there are outstanding debts.  RCW 11.62.010(2)(f).  Most importantly, the affidavit must include the claiming successor’s statement that she or he is either personally entitled to the property, or is entitled on the behalf and with the written authority of all other successors who have an interest therein.  RCW 11.62.010(2)(i). After working through these issues, some people who start out thinking it is a good idea to use this shortcut of sorts realize that an old-fashioned probate gives them more power without a lot more work. A consultation with an experienced probate attorney can help even the most self-sufficient person in assessing the options for a successful and efficient estate transfer process.

[1] Joseph N. Blumberg, 51 Flavors: A Survey of Small Estate Procedures Across the Country.  Probate & Property Magazine, Volume 28 No. 04 (July 20, 2016). [2] RCW 11.62.010(c). [3] See WAC 458-61A-202(6)(h))