Small estate affidavit

A small estate affidavit is a sworn statement that lets someone collect a modest estate without a full probate. In several states you hand it to the bank and the bank pays. In others you file it with a court and wait for a judge.

It is the cheapest tool in this area, and it fails in predictable ways. Most of the failures come from three things: assuming it moves real estate, assuming no court is involved, and not understanding what you are swearing to.

What it moves, and what it does not

It moves personal property. Bank accounts, the final paycheck, a refund, the contents of a brokerage account, sometimes a vehicle.

It generally does not move real estate. New York's statute says so as plainly as any:

This article is not applicable to any interest in real property in this state owned by a decedent, but his ownership of real property does not bar the use of this article as to his personal property.

So the house does not pass this way, but owning a house does not stop you using the affidavit for the bank account. California's court self-help site puts the same rule in plain words: "You cannot use this type of Affidavit to transfer real property (like a house, building, or land)."

There are real exceptions, and they are narrow.

Texas allows a homestead to pass by affidavit, but only where "a decedent's homestead is the only real property in the decedent's estate," and the affidavit must be recorded in the county deed records.

California has a separate route for real property, and it is not the same document. The affidavit under Probate Code § 13200 is filed in the superior court, requires a probate referee's appraisal, and cannot be used until six months after the death, not the forty days that applies to personal property. A different procedure again, a court petition under §§ 13150-13154, covers a primary residence up to a much higher limit.

If anyone tells you California's small estate wait is forty days, they are describing one of three procedures.

"No court involved" is only true in some states

This is the most common inaccuracy published about small estate affidavits, and it will waste your time if you believe it in the wrong state.

No court. Washington's statute directs that a person holding the property "shall pay such indebtedness or deliver such personal property ... to a person claiming to be a successor" on receipt of proof of death and a conforming affidavit. California's § 13101 likewise requires only that the affidavit "be furnished to the holder of the decedent's property."

Court required. Texas requires that the affidavit "is filed with the clerk of the court that has jurisdiction and venue of the estate" and that "the judge approves the affidavit." Ohio's equivalent is a court order relieving the estate from administration, which involves notice to the spouse and heirs and newspaper publication.

Find out which kind of state you are in before you plan around it.

Thresholds, and why every published number is suspect

The dollar limits change, they are tiered by date of death in some states, and commonly cited figures go stale fast. These were accurate as of September 2026 and should be checked against your state's current figure before you rely on them.

State	Threshold	Notes
California	$208,850 personal property	Deaths on or after 1 April 2025. Separate limits apply to real property
Illinois	$150,000	Deaths on or after 15 August 2025; excludes motor vehicles registered with the Secretary of State
Washington	$100,000	Personal property; excludes a surviving spouse's community property interest
Texas	$75,000	Excludes homestead and exempt property
Ohio	$35,000, or $100,000 where the spouse is sole heir	Release from administration, by court order
New York	$50,000	Personal property only

Three traps worth naming:

The statute often is not the number. California's § 13100 still reads "$166,250, as adjusted periodically in accordance with Section 890." Anyone quoting the raw statute publishes a wrong figure. The operative amount lives in the Judicial Council's adjusted-amounts table.

Official pages go stale too. California's own self-help page was still showing $184,500 when we checked, against $208,850 in the Judicial Council's table.

The threshold keys to the date of death, not the date you file. California and Illinois both tier this way. A death in 2024 uses the 2024 number.

What counts toward the limit

Usually less than people think. The threshold generally applies to assets that would go through probate, not to everything the person owned.

Accounts with a named beneficiary, payable-on-death and transfer-on-death accounts, life insurance, retirement accounts, and property held in joint tenancy with survivorship typically pass outside the estate and outside the count.

People get this wrong in both directions: ruling themselves out of a simple procedure because they added up everything, or overshooting the limit because they left something out. Ask the question asset by asset.

What you are signing

This is the part that gets skipped, and it is the reason to read before you sign.

You are swearing under penalty of perjury. California's wording is the standard form: "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."

You may become personally liable for the debts. California is explicit: "A transferee is personally liable, to the extent provided in this section for the unsecured debts of the decedent," capped at the fair market value of what was transferred, less liens. Texas goes further and reaches the signers: "Each person who executed the affidavit is liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit." Illinois has the affiant sign an express indemnity.

The bank, meanwhile, is protected. Washington discharges the payer "to the same extent as if such person has dealt with a personal representative," and it is "not required to see to the application of the personal property, or to inquire into the truth of any matter."

That asymmetry is the honest summary: the institution is shielded, and you are exposed. It is usually still the right tool for a small, simple estate with cooperative heirs. It is the wrong tool if there are real debts, a contested heir, or assets you are unsure about.

The practical failures

Four things go wrong often enough to plan around.

Listing every asset matters. Anything you leave off may not be collectible later without starting over. A refund cheque arriving after the fact, for a small amount, can be genuinely hard to deposit if it was not listed.

Every heir may have to sign. Texas requires the affidavit be sworn to by two disinterested witnesses and by each distributee with legal capacity. An heir nobody can find, or an estranged sibling who will not respond, stops the process. Find out who must sign before you start.

Some states require intestacy. Texas limits the procedure to a decedent "who dies intestate." Illinois and California both accommodate a will, Illinois's statutory form has alternative paragraphs for each case, and California's § 13100 lets a successor act "without procuring letters of administration or awaiting probate of the will."

The clock. Washington and California require forty days for personal property. Texas requires thirty. California's real-property affidavit requires six months.

Where to get the real answer for your state

Your state court's self-help site, not a form-selling website. The thresholds, the waiting period, the forms, and whether a judge is involved are all state law, and the free official source is better than anything sold to you.

• California Courts Self-Help Guide: selfhelp.courts.ca.gov/probate/small-estate
• TexasLawHelp: texaslawhelp.org/article/small-estate-affidavits
• Your state's judicial branch self-help portal, or the probate clerk in the county where the person lived

Call the county probate clerk and ask two questions: what is the current threshold, and is a court filing required. Clerks cannot give legal advice, but they answer procedural questions all day and the call is free.

If there are real debts, a disputed heir, or real estate, talk to an attorney before signing anything. The affidavit is cheap precisely because it shifts risk onto the person who signs it.

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The 72-Hour File has a paper map: a page recording which documents exist, where they are, and who else knows, so the person doing this later is not guessing at what the estate contains. See what is inside