In some cases where the total value of an estate is less than $100,000, you may claim property with an Affidavit and not file for probate.
Once in a while, a client will come to my office because their parent has passed away. My client explains that their parent had a checking and savings account and a car that was titled only in the parent’s name.
They tell me that they have gone to the bank and the bank won’t give them access to the bank accounts even though they presented them with a death certificate and sometimes with a Will nominating the child to be the personal representative. Then when they went to the assessor’s office, the clerk told them that they would have to probate before they could transfer the car title. My client complains that they do not want to probate the estate and asks if there is some alternative to access the money in the bank and get a new title to the car.
The good news is that there is an alternate way. Idaho Code § 15-3-1201 establishes a procedure whereby property can be collected by an Affidavit. A person claiming to be the successor of the decedent may present an Affidavit, containing the information listed below, to any person or financial institution owing the decedent money or having possession of tangible personal property belonging to the decedent. Once they have been presented with an Affidavit, the bank is required to turn over the money in the accounts and any person holding tangible personal property must deliver it to the successor.
An Affidavit is a sworn statement signed before a Notary. Idaho Code § 15-3-1201 provides that the Affidavit must state the following:
- The fair market value of the entire estate of the decedent, which is subject to probate, less encumbrances, does not exceed $100,000;
- That thirty days have elapsed since the death of the decedent;
- No application for the appointment of a personal representative is pending or has been granted in any jurisdiction; and
- That the claiming successor is entitled to payment or delivery of the property.
If you need to transfer the title of a vehicle, an Affidavit form for vehicles can be found on the Idaho Department of Transportation’s website.
The successor—any person to whom payment has been made or to whom property has been transferred—is accountable to any creditor of the decedent and to any other persons with a right to the money or property.
This section of the Idaho Code provides an easy method for the collection of property for small estates without having to file for probate with the court. However, in some cases going through probate may be less troublesome than trying to collect property with a small estate Affidavit. For example, sometimes financial institutions are reluctant to give money to a person solely on an Affidavit and prefer to give it to a Personal Representative appointed by the probate court.
If you have questions about when it would be appropriate to use an Affidavit, we would be happy to answer them.
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Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.