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My mother passed away intestate, with a small estate that is insolvent. What would happen if I file a small estate affidavit?

Portland, OR |

Assets: vehicle valued at $5000 after it is paid off by "death insurance" - no named beneficiary; 401k $6000; Bank accounts: less than $500 combined. Home is mortgaged and underwater; not technically an asset. Debts: $7k Funeral/burial costs (paid by myself); $100k+ in medical bills over last 8 months, all related to final illness; other debts - credit cards, medical collections, student loans etc - about $30k. If I file small estate affidavit in order to claim funeral/burial costs I've paid and then rest would go to creditors (medical) until estate can be considered insolvent and “closed”, would I really need an attorney's assistance? How could I limit the expense to do this? Or should I walk away from it all?

Attorney Answers 1


  1. First, the DMV will probably transfer title of the car to your mother's children. You kids are then free to sell it. The 401k should have a named beneficiary, which passes outside of probate. If not, you will need to file probate to have her debts paid from the 401k funds. BTW, it is unlikely that your mother's estate if small enough for a "small estate affidavit." [The court and statutes count the market value of the house, without regard to the equity.] It would be well worth your time to discuss all this with a probate attorney, so you will have peace of mind. Give me a call: 503-650-9662, Diane. Also, you will receive a lot of information from reading my legal guides on probate, on this website, AVVO.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

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