I was told by one attorney that it was not worth it to file this because of the size of the estate. Also, I have a will which put me as executrix, but again the estate is so small, that I did not see the since in regular probate. Please advise.
Estate Planning Attorney
Unfortunately, a small estate affidavit can only be used when the decedent did not leave a will. In your case, there is a will, so a small estate affidavit cannot be used. You will have to probate the will.
If the decedent left a will, you will have to go through the standard probate process. Depending on what you consider as so small, you may want to enlist the assistance of local probate counsel.
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Estate Planning Attorney
As mentioned above, since there is a will using a small estate affidavit is not possible. It sounds like you will have to go through probate, but for small estates going through probate there are a few other options that may be available depending on the circumstances, as they are only applicable to very specific situations. These options are an application for an order of no administration, a summary proceeding after appointment of a personal representative, or probating the will as muniment of title.
An application for order of no administration applies when the entire value of the estate, excluding homestead and exempt property, does not exceed the family allowance. The family allowance is the amount required to support the spouse and/or minor children for a year from the decedent’s date of death. The surviving spouse, minor children or an adult incapacitated child of the decedent may then apply for the family allowance and ask for an order stating no administration is necessary. This procedure may be used whether there is a will or not, however whether to use it is fact specific and will only be appropriate if there is a surviving spouse, minor children or an adult incapacitated child and if the family allowance exceeds the value of the estate .
Summary proceedings may occur after a personal representative is appointed and an inventory (or affidavit of lieu) and claims are submitted, if it is established the estate is not large enough to pay all the claims of the estate. So, essentially this is used when you begin probate and then it becomes clear the estate is insolvent. If you decided to probate the will and then realized the estate is not large enough to pay the claims, this is probably how you would proceed.
There is also the option of probating the will as muniment of title. This is only used when there is a will, there are no estate debts other than secured liens on real estate, and the only assets of the estate are real property or vehicles. This is a way to pass title to real property without full probate, essentially preserving the chain of title. If the estate has unpaid debts and/or probate assets other than real property or vehicles, you should not proceed to probate the will as muniment of title.
If the above are not applicable, you will have a regular probate (unless there are other facts you have not mentioned such as a trust holding the assets or only non-probate assets.)
The cost of probate can vary greatly depending on the type of probate, size of the estate, ease of collecting information regarding the estate, cooperation of the parties, etc. Depending on the size of the estate, the cost probate could exceed the assets of the estate.
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