Small Estate Affidavit | Prob. Code 13100 Compliant

A small estate affidavit is a document in which a person legally entitled to inherit swears that the decedent's probate estate falls below a state dollar limit, that the required waiting period has passed, and that no probate case is open, then uses that sworn statement to claim specific assets directly from whoever holds them. The holder, usually a bank, credit union, employer, or transfer agent, releases the property to the affiant and is protected from liability for doing so. No judge appoints an executor, and in most states no court file is ever opened.

The label changes at the state line. California and Texas call it a small estate affidavit; New York uses voluntary administration; Florida runs the closest equivalent through summary administration and disposition without administration. What unites them is the core mechanic: a sworn attestation substitutes for a court-issued grant of authority. That distinction matters when you compare it to full probate, where a court must formally appoint a personal representative before anyone can touch a dime. It also separates the affidavit from an affidavit of heirship, which merely records who the heirs are and does not, by itself, compel a bank to pay out. If you are weighing whether a simple sworn document is enough or whether you need something court-supervised, our guide to appointing someone to act on your behalf through a power of attorney explains where authority to manage assets comes from during life, which is a useful contrast to authority after death.

Small estate procedures are creatures of state law, layered over a common template that many states borrowed from the Uniform Probate Code § 3-1201, which authorizes collection of personal property by affidavit once a statutory threshold and waiting period are met. Because each legislature set its own numbers, the single most important task before signing is confirming your state's current limit, its waiting period, and whether the affidavit is presented directly to the asset holder or filed with a court first. Getting this wrong is not a paperwork nuisance. An affidavit that overstates the estate's value or skips the waiting period is a false statement made under penalty of perjury, and the affiant is personally liable to any heir or creditor with a superior right.

California illustrates how granular these rules get. Under §13100 of the California Probate Code, the personal property threshold is $208,850 for deaths on or after April 1, 2025, and it rises to $239,700 for deaths on or after April 1, 2026, because §890 ties the figure to inflation on a three-year cycle. California also imposes a strict 40-day waiting period from the date of death before the affidavit can be presented, and it bars the procedure entirely if a probate case is already pending. Texas takes a narrower path: Chapter 205 of the Texas Estates Code allows a small estate affidavit only when the decedent died without a will, caps the estate at $75,000 excluding homestead and exempt property, requires 30 days to pass, and, unlike most states, demands that a judge review and approve the affidavit before it takes effect. The authorities that publish these rules are the state probate courts and legislatures, and the plain-language summaries maintained by the California Courts self-help center on collecting personal property from a small estate are a reliable starting point for confirming a threshold before you draft.

Form requirements are equally statutory. Nearly every state requires the affidavit to be signed under penalty of perjury, and while notarization is not always legally mandatory, banks routinely refuse an un-notarized affidavit, so notarizing it is standard practice. Some states demand that all entitled heirs sign, not just the person collecting the asset.

The classic trigger is a death that leaves behind money but no real estate worth fighting over: a checking account, a modest brokerage position, a final paycheck, a security deposit, or an uncashed refund. When those assets sit solely in the decedent's name with no beneficiary designation, they are locked, and the bank will not release them to a grieving relative on trust alone. The affidavit unlocks them without the cost and delay of formal administration, which is why it is the workhorse document for estates that look large on paper but are small once you strip out non-probate assets.

That stripping-out is the second common scenario, and it catches families off guard constantly. A person with a $300,000 retirement account, a life insurance policy, and $18,000 in a personal savings account has a probate estate of only $18,000, because the retirement account and insurance pass directly to named beneficiaries and never enter probate. The affidavit works precisely because it measures only what would otherwise go through court. Understanding which assets count is the whole game, and it pairs naturally with lifetime planning tools like our last will and testament template that names an executor and beneficiaries, since a will directs who inherits but does not, on its own, avoid probate.

Two edge cases deserve flagging. First, a decedent who owned real property usually cannot use a personal-property affidavit for the house, because most states route real estate through a separate procedure or full probate; California, for instance, uses a distinct affidavit for real property of small value. Second, wages present a quirk: many states let a surviving spouse collect a deceased worker's final pay through a simplified employer affidavit with a lower, separate cap, which is worth checking before you assume the general threshold controls. Families juggling several documents after a death often start with a broader inventory of what is needed, and our full catalog of personal legal documents helps map the whole sequence.

• The decedent identification and date of death block records the deceased's full legal name as it appears on the death certificate, the date and place of death, and county of residence, because a mismatch between the affidavit and the certified death certificate is the single most common reason a bank rejects the document.
• The statutory threshold declaration states, under penalty of perjury, that the gross fair-market value of the decedent's probate personal property, excluding statutorily exempt assets like joint-tenancy property, beneficiary-designated accounts, and trust assets, does not exceed the applicable state limit. The template leaves a field for the exact figure and the citation so the affidavit speaks the language of your state's statute rather than a generic form.
• The waiting-period attestation confirms the mandatory interval has elapsed, whether that is California's 40 days under §13100(b) or the 30 days most other states require. An affidavit presented before this period runs is void, and the template forces you to enter the date of death so the interval is verifiable on the face of the document.
• The no-pending-probate statement attests that no probate proceeding has been opened or granted, or that the personal representative has consented in writing. This is the clause institutions scrutinize most, because it is what authorizes them to bypass a court order.
• The successor entitlement and no-superior-right clause identifies every person entitled to the property, their relationship to the decedent, and their pro-rata share, and swears that no one holds a superior claim. Where state law requires it, the template provides signature blocks for all entitled heirs, not only the affiant.
• The property description schedule itemizes each asset being claimed, by account number, certificate, or description, so the holder can match the affidavit to the exact property on its books.

California sets one of the highest thresholds in the country. Under §13100 of the Probate Code, an heir may collect personal property up to $208,850 for deaths on or after April 1, 2025, a figure that climbs to $239,700 for deaths on or after April 1, 2026 under the inflation mechanism in §890. The affidavit cannot be presented until 40 days have passed since the death, and it may not be used if a probate case is pending. California treats real property separately, so a house cannot ride along on the personal-property affidavit; a distinct procedure under §13200 handles real property of small value, and a primary residence can move through a separate petition without counting against the personal-property cap.

Texas runs a more restrictive regime. Chapter 205 of the Texas Estates Code permits a small estate affidavit only when the decedent died intestate, meaning without a will, and caps the estate at $75,000 after excluding the homestead and exempt property. Texas is unusual in requiring the affidavit to be filed with the court and approved by a judge before it operates, and the estate's non-exempt assets must exceed its non-exempt debts. At least 30 days must pass after death. A qualifying homestead can transfer under the affidavit only in narrow circumstances involving a surviving spouse or minor children.

Florida does not use a self-executed affidavit for most estates. It runs summary administration under F.S. §735.201, a streamlined court process ending in a judge's order that banks and title companies accept readily. The threshold historically sat at $75,000 of non-exempt assets, but CS/HB 1337, signed April 29, 2026, doubles it to $150,000 effective July 1, 2026. An estate also qualifies regardless of value if the decedent has been dead more than two years. Florida homestead property is excluded from the calculation under the state constitution.

New York offers voluntary administration under Article 13 of the Surrogate's Court Procedure Act, available when the decedent left personal property with a gross value of $50,000 or less, exclusive of property set off to the family. A voluntary administrator is appointed through the Surrogate's Court, and the procedure works whether or not the decedent left a will. Because thresholds and mechanics diverge this sharply, always confirm the current figure for the state of the decedent's residence before drafting, and note that the state where the assets sit, not where the heir lives, usually controls.

You begin by selecting the state where the decedent lived, and the template adjusts the statutory citation, the threshold figure, and the waiting period to match that jurisdiction. From there you enter the decedent's full legal name exactly as it appears on the certified death certificate, along with the date, place, and county of death, because these fields must line up with the certificate the bank will demand. The form then asks you to confirm the waiting period has run and to attest that no probate case is open, which are the two attestations that give the affidavit its legal force.

Next you inventory the property. You list each asset by account number or description and enter the gross value, and the template checks that total against the state threshold so you catch a disqualifying overage before you sign rather than after a bank rejects the document. You then identify every heir entitled to a share, their relationship to the decedent, and their portion, and the form generates signature blocks for each person your state requires to sign. Once complete, you download the finished affidavit in Word for any last edits and in PDF for signing, then take it to a notary. Families assembling a broader estate file often pair this with our affidavit of identity template for probate and title matters, which covers the identity attestations institutions sometimes request alongside the small estate affidavit.

The error that sinks the most affidavits is counting the wrong assets. People add up everything the decedent owned, including retirement accounts, life insurance, and jointly held property, then conclude the estate is too large for a simplified transfer. Those assets almost never count, because they pass outside probate to named beneficiaries or surviving joint owners. Measure only the probate personal property, and many estates that looked disqualified will slide comfortably under the threshold. The mirror-image mistake is undercounting to squeeze below the limit, which is a false statement under oath and exposes the signer to personal liability to creditors and other heirs.

Timing trips up almost as many families. Presenting the affidavit before the waiting period expires makes it void, and in California that means the full 40 days from the date of death, not 40 days from when you found the account. A related error is ignoring the no-pending-probate requirement: if any relative has already opened a probate case, the affidavit will not work without the personal representative's written consent. Two more recur often. Skipping notarization when the receiving bank requires it, even if state law technically does not, guarantees a bounce at the teller window. And in states like Texas that demand a judge's approval, treating the affidavit as self-executing and marching it straight to the bank simply fails, because the document has no legal effect until the court signs off. When authority questions get tangled, our promissory note and personal loan template is a reminder that debts owed to the decedent are themselves collectible assets that belong on the property schedule.