A small estate affidavit is a written statement approximately five pages long prepared usually by a surviving family member and signed in front of a notary. It is not presented to a judge or reviewed in a court proceeding. No court orders are entered. In most cases, it is completely private and does not involve a court in any way unless there is a dispute about it. In Oregon, the original affidavit is filed with a court and certified copies are used to take actions.
Advantages of Small Estate Affidavit vs. full probate
1. Time. With a small estate affidavit a beneficiary can obtain control of the decedent's assets quickly.
2. Cost. The cost of creating and using a small estate affidavit is usually between 10% and 20% or the cost of a full probate.
3. Effort. With a small estate affidavit, a beneficiary can do most of the work of managing the decedent's assets, paying the decedent's bills and distributing the net assets to the beneficiaries.
What can you do with a small estate affidavit?
The creator of the small estate affidavit can use it to take control of a decedent's assets. The creator of it, delivers a certified copy of the filed affidavit to the holder of the asset and demands that the asset be turned over to the creator. The holder of the asset is obligated to turn over the asset to the creator.
The creator undertakes to take possession of the decedent's assets and use them as the law requires to pay the debts of the decedent and turn the balance over to the beneficiaries of the estate.
What must the affidavit include? Part 1
The Oregon smalll estate affidavit must include 18 certain specified things:
(1) the decedent's name, age, domicile, post office address, and Social Security number.
(2) the date and place of the decedent's death.
(3) attach a certified copy of the death certificate.
(4) Describe and state the fair market value of all property to which the affidavit is to apply, including a legal description of any real property.
(5) State that no application or petition for the appointment of a personal representative has been granted in Oregon.
(6) State whether the decedent died testate or intestate.
(7) If the decedent died testate, include the will as an attachment to the affidavit.
(8) List all the decedent's heirs and the last address of each heir as known to the affiant.
What must the affidavit include? Part 2
(9) State that a copy of the affidavit showing the date of filing and a copy of the will, if the decedent died testate, will be delivered to each heir or mailed to the heir at the last known address.
(10) If the decedent died testate, list the devisees of the decedent and each devisee's last address as known to the affiant.
(11) If the decedent died testate, state that a copy of the will and a copy of the affidavit showing the date of filing will be delivered to each devisee or mailed to the devisee at the last known address.
(12) State the interest in the property described in the affidavit to which each heir or devisee is entitled and the interest, if any, that will escheat.
What must the affidavit include? Part 3
13) State that reasonable efforts have been made to ascertain creditors of the estate.
(14) List any expenses of and claims against the estate that remain unpaid or on account of which the affiant or any other person is entitled to reimbursement from the estate, including the known or estimated amounts ther
What must affidavit include? Part 4
(15) List separately the name and address of each person known to the affiant to assert a claim against the estate that the affiant disputes and the known or estimated amount of the claim and state that a copy of the affidavit that shows the filing date will be delivered to each such person or mailed to the person at the last known address.
(16) State that a copy of the affidavit showing the filing date will be mailed or delivered to the Oregon Department of Human Services
P.O. Box 14021
Salem, OR 97309-5024
What must affidavit include? Part 5
(17) State that claims against the estate that are not listed in the affidavit or that are in amounts larger than those listed in the affidavit may be barred unless (a) a claim is presented to the affiant within four months of the affidavit being filed at the address stated in the affidavit for presentment of claims or (b) a personal representative of the estate is appointed within four months after the affidavit is filed.
(18) If the affidavit lists one or more claims that the affiant disputes, state that any such claim may be barred unless (a) a petition for summary determination is filed within four months of the affidavit being filed or (b) a personal representative of the estate is appointed within four months after the affidavit is filed. ORS 114.525.