Affidavits for the Estate Settlement Process

An affidavit can be a very useful tool in the context of estate settlement.  By definition an affidavit is a written statement where an affiant (i.e. a person) is swearing that the information contained in the affidavit is true based on their personal knowledge of the facts contained in the affidavit.  Estate settlement is the process of settling a person’s estate after they have passed away. Whether you die with a Will, Trust or with no estate documents, your estate will need to be settled.

Several affidavits are commonly used during the estate settlement process.  If an individual passes away and holds a safe deposit box in their name only, it may be necessary to use an “Affidavit in Support of Search of Decedent’s – Lessee’s Safe Deposit Box” to gain access to the box.  Sometimes parents forget to update who has access to their safe deposit box before their death. It is then up to their children to track down all of their parents’ important paperwork like their Wills, Trust, burial paperwork, vehicle/boat titles, etc. which are often stored in a safe deposit box.  If that child is not listed as an owner on that safe deposit box, most banks will not allow access to the box. However, by using the affidavit referenced above, interested parties may have the box opened to have it inventoried to see if any important documents are held in the box. The bank then has a legal obligation to deliver some of those documents either to the Court or to the party opening the box.

Another affidavit we often see used during the estate settlement process is the “Affidavit for Collection of Personal Property.”  This type of affidavit is used to collect the personal property of the deceased where the entire value of the deceased’s probate estate is $75,000.00 or less.  Two things that are key with this document, one it covers personal property only and two it looks only at the value of the probate estate.

Personal property in this context usually includes things like refund checks from utility companies or a refund from the deceased’s homeowner’s insurance policy.  It cannot be used for real estate. The affidavit is often used to close out and collect the proceeds of small bank accounts or a small life insurance policy that had no beneficiary listed.  It is not uncommon for people to set up a bank account and forget to name a beneficiary for that bank account. If they pass away and it was in their name only and did not have a beneficiary listed, we use the affidavit to close it and collect those funds if the $75,000.00 limit is met.

What is meant by probate estate?  The probate estate consists of those assets that the individual owns in their name only as of date of death with no beneficiaries listed.  If the value of those assets are greater than $75,000.00, you would need to go through the court probate process to collect the assets. If the value is under that amount, you can use the affidavit mentioned above.  For example, Mom passes away at the age of 90, she lives in an apartment, does not own any real estate, has one vehicle worth about $15,000.00, has a checking account valued at $10,000.00 and an individual retirement plan (“IRA”) with $125,000.00 in it.  The IRA names Mom’s two kids as beneficiaries, however the remaining assets have no beneficiaries. The kids will be able to use an affidavit to close out Mom’s checking account since the total value of assets that may be subject to probate are under $75,000.00.  With beneficiaries listed on the IRA, it will not be treated as a probate asset.

As you work through settling an estate, don’t forget about the affidavit which can be very useful to help you get checks cashed and small accounts closed out.

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