Can you distribute the deceased’s property without a formal court procedure?

This answer differs from state-to-state, but in general, if the value of the assets of the decedent’s estate, not including the value of the decedent’s homestead and exempt property, is less than a figure set by your state, the heirs of a person who has died without leaving a Will (i.e., he or she has died “intestate”) may file a “Small Estate Affidavit” with the court and may distribute the assets without going through the probate process upon court approval.

This procedure is only for someone who has died without a Will or a Trust, and whose estate value, as adjusted to exclude their home and other exempt property, is lower than the ceiling amount set in your state’s law. To give you an idea how much this figure may differ from state-to-state, in California a small estate is considered $184,500; in Oregon, the figure is $275,000; in Illinois, the figure is $100,000; in Florida and Texas, it’s $75,000. 

Obviously, in some states all but the smallest estates will be excluded from using this process, while in other states the process is more widely available.  Where the estate’s adjusted value is greater than the state allows for the use of the Small Estate Affidavit procedures, and where there is no Will or Trust, the estate will have to go through the probate procedure.  This will generally mean that the heirs will need to hire a probate lawyer, but that is not a requirement, and the heirs can choose a Personal Representative to apply to the court to become the Administrator of the estate.  (To read about what happens when you die “intestate,” that is, without a Will or Trust, please see our blog post about Intestacy.)

States put different restrictions on who can be the recipients of distributed assets using the Small Estate Affidavit procedure.  In some states, the homestead can only be transferred to the decedent’s spouse or a minor child.  But, again, this differs by state.  Once the affidavit is approved by the judge, the homestead listed in the affidavit (the listing must contain a proper legal description of the real estate parcel or lot boundaries), a certified copy of the approved affidavit can be filed with the County Recorder to transfer title.   

There is not too much that can be written about this Small Estate Affidavit process since it differs so much from state-to-state.  But the point is that it is available and is quite useful to those estates who fit the state standards, and you can check to see what the rules are in your state if the deceased died without a Will or Trust.