Wednesday, July 15, 2015

Small Estate Affidavit

Under Mississippi Code Annotated 91-7-322, personal property owed to a deceased person with a value of up to $50,000 may be delivered to his or her heirs or successors by affidavit.  This is often referee to as a small estate affidavit. 

The affidavit can be made at any time after 30 days have passed since the person’s death.  It may be given to “any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent.”  That person is then required to transfer the personal property or the instrument to the successor.

As the name suggests, the use of the Small Estate Affidavit is limited to small estates.  If the estate is worth more than $50,000, the Small Estate Affidavit will not apply. But any secured debt of the estate (for example, a lien on an automobile) can be subtracted from the value of the estate for purposes of computing the $50,000 threshold.

The Small Estate Affidavit is not available if an estate will be opened.  The person making the affidavit must represent that no personal representative (executor or administrator) of the estate has been appointed or is the process of being appointed.  The affidavit must also describe the relationship between the person making the affidavit and the deceased person.  The Small Estate Affidavit is only available to “successors,” which include the surviving spouse, the adult with whom minor children are residing, adult children, or parents of the decedent, in that order.

Once the successor provides the affidavit to the third party, he or she can take whatever actions necessary to deal with the property covered by the Small Estate Affidavit.  Third parties can rely on the statute without fear of liability.  There is no need for the third party to dig further into the truth of the affidavit or otherwise keep up with what happens to the asset after it is transferred to the successor. If the third party simply refuses to transfer the property after having been furnished with a Small Estate Affidavit, the successor can bring a proceeding in chancery court to force the transfer of the property.

This can be helpful in dealing with small amounts of property that need to be transferred without the necessity of a full probate. 

1 comment:

  1. what is the "third parties" being referenced in this article?

    ReplyDelete