Small estate administration by affidavit
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Small Estate Administration by Affidavit. Problem: Avoiding both cost and burden on court of administering small estates Estates with small net probate assets Large estates with small net residual probate assets Typically bank accounts, small investments, etc.

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Small Estate Administration by Affidavit

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Small estate administration by affidavit

Small Estate Administration by Affidavit

  • Problem:Avoiding both cost and burden on court of administering small estates

  • Estates with small net probate assets

  • Large estates with small net residual probate assets

  • Typically bank accounts, small investments, etc.


Small estate administration by affidavit1

Small Estate Administration by Affidavit

  • Solution: Transfer property via Affidavit rather than Letters Testamentary/Letters of Administration

  • Adopted in some form by most states and by the UPC

  • Enacted by statute in Kansas, Missouri, and Oklahoma


Kansas k s a 59 1507a

Kansas: K.S.A. § 59-1507a

  • Applies primarily to pension-like benefits, public or private, due to decedent

  • Applies to benefits less than $5,000

  • Affidavit is required for transfer

  • Content of the affidavit is specified by statute, but its form is not

  • Beneficiaries limited to Spouse and immediate family (children and grandchildren, parents, and siblings)


Kansas k s a 59 1507b

Kansas:K.S.A. § 59-1507b

  • Testate or intestate

  • Applies to Personal Property only

  • Applies to estates with net probate assets less than $40,000

  • Affidavit is required for transfer of property

  • Content of the affidavit is specified by statute, but its form is not

  • Statute refers to form published by the Kansas Judicial Council as “sufficient”


Kansas k s a 59 1507b1

Kansas:K.S.A. § 59-1507b

  • Affiant may be the Personal Representative (testate) or any legitimate successor (intestate)

  • All transfers of Personal Property to successors “shall be deemed” transfers to the Personal Representative

  • Per statute: Upon receipt of affidavit, any entity holding assets shall release them

  • Upon delivery of assets, holding entity is discharged and released from further claims


Missouri 473 097 rsmo

Missouri:§ 473.097, RSMo

  • Applies to Real or Personal Property

  • Applies to estates with net probate assets less than $40,000

  • Involves some (minimal) supervision by the court

  • Affidavit is required for transfer of property

  • Affidavit must list all probate assets

  • Bond is required of affiant unless waived by the court


Missouri 473 097 rsmo1

Missouri:§ 473.097, RSMo

  • Notice to Creditors must be published if the net probate assets exceed $15,000

  • Affidavit must be filed with the court clerk, who will then issue copies

  • Content of the affidavit is specified by statute, but its form is not

  • Each county publishes its own preferred form


Oklahoma 58 o s 393

Oklahoma:58 O.S. § 393

  • Similar to Kansas

  • Applies to estates with net probate assets less than $20,000

  • Affidavit is required for transfer of property

  • Content of the affidavit is specified by statute, but its form is not

  • Per statute: Upon receipt of affidavit, “any person” holding assets shall release them

  • Upon delivery of assets, “the person” is discharged and released from further claims


How does it work in the real world

How does it work in the real world?

  • Some banks and investment brokers have appropriate affidavit forms on the shelf, but many do not

  • Some banks (e.g. Bank of America) are totally unaware of the procedure and will refuse to release funds, even when presented with a proper affidavit and a printed copy of the statute

    ◦“We require Letters Testamentary before we'll release anything.”


How does it work in the real world1

How does it work in the real world?

  • ◦“That's just something you printed off the Internet.” [Referring to a true copy of the statute printed directly from the official State of Oklahoma web site.]

  • ◦“We're a federally-chartered bank. We don't have to comply with state law.”

  • “You can make something fool proof, but you can't make it damn-fool proof.” ~ Larry Maisel


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