For most Americans who die with modest assets, formal probate is unnecessary. Every state offers a small-estate procedure that lets heirs collect the decedent's bank accounts, vehicles, and brokerage holdings through a simple sworn affidavit — no court filing, no attorney, no Letters Testamentary. The procedure is fast (typically 30 to 45 days after death), inexpensive (often the cost of a notary and a death certificate), and available to anyone willing to swear under oath that they are entitled to the assets and that creditors will be paid. The catch is that the threshold is low in most states, real property is frequently excluded, and the procedure does not protect heirs from creditor claims that surface later.
What a small-estate affidavit is
A small-estate affidavit is a written statement, signed under penalty of perjury, in which the affiant (the person signing) declares that they are the rightful heir or beneficiary of a decedent's property and that the estate qualifies for the state's simplified procedure. The affidavit is presented directly to the institution holding the asset — a bank, a brokerage, the Department of Motor Vehicles, or an employer holding unpaid wages. Upon receiving a properly completed affidavit and a certified death certificate, the institution releases the asset to the affiant without court involvement.
The legal foundation is that institutions are protected by state law when they release assets pursuant to a facially valid affidavit. In California, Probate Code § 13101 lists the exact statements the affidavit must contain and provides that the institution incurs no liability for acting in reliance on it. Most other states have similar statutory safe harbors. The procedure is sometimes called a "small estate affidavit," an "affidavit of heirship," or a "collection of personal property by affidavit" depending on the jurisdiction.
State thresholds for 2025
Each state sets its own gross-estate threshold below which the affidavit procedure is available. The thresholds vary dramatically, from $50,000 in New York (SCPA § 1301) to $184,500 in California (Probate Code § 13100) to $275,000 in some Alaska filings. The 2025 thresholds in the most populous states are:
- California — $184,500 (Probate Code § 13100), adjusted every three years for inflation; next adjustment in 2026.
- Texas — $75,000 of personal property (Estates Code § 205.001); a separate affidavit procedure under Estates Code Chapter 203 covers homestead real property passing to a surviving spouse or minor child without limit.
- New York — $50,000 of personal property (SCPA § 1301, voluntary administration).
- Florida — $75,000 of non-exempt assets, or any amount if the decedent has been dead more than two years (Florida Statutes § 735.301, summary administration).
- Washington — $100,000 (RCW § 11.62.010).
- Illinois — $100,000 of personal property (755 ILCS 5/25-1).
- Pennsylvania — $50,000 of personal property (20 Pa.C.S. § 3102).
- Ohio — $35,000, or $100,000 if the surviving spouse is the sole heir (Ohio Rev. Code § 2113.03).
The threshold refers to the gross value of probate assets — those that would otherwise pass through probate. It excludes assets that pass by beneficiary designation, jointly held property with right of survivorship, and trust assets. A decedent with a $500,000 IRA payable to a named beneficiary, a $300,000 home held in joint tenancy, and $40,000 in a bank account has only $40,000 of probate assets and qualifies for small-estate treatment everywhere.
The step-by-step process
The procedure is largely the same across states. First, obtain multiple certified copies of the death certificate — usually 5 to 10 — from the county vital records office, at $20 to $30 each. Second, wait the required period after death (typically 30 to 45 days; California requires 40 days, Texas requires 30 days). Third, prepare the affidavit using the state-specific statutory form or a template that includes the required statements: the affiant's identity, the decedent's identity and date of death, a list of the assets to be collected, a statement that the estate qualifies under the state's threshold, and a statement that the affiant is entitled to the assets as a beneficiary or heir and will use them to pay creditors and distribute the balance.
Fourth, sign the affidavit in front of a notary public. Some states — California, for example — also require a second witness signature in addition to the notary. Fifth, present the affidavit, a certified death certificate, and a copy of the will (if any) to each institution holding an asset. Most banks and brokerages release funds within 7 to 14 days of receiving a properly completed affidavit. The DMV typically processes title transfers within 30 days.
The affidavit does not need to be filed with the court in most states, though a few (such as Ohio) require a copy to be deposited with the probate court. There is no filing fee in most jurisdictions, and no attorney is required — though consulting one for estates near the threshold or with potential creditor claims is wise.
Waiting periods and creditor protection
The waiting period exists to give creditors an opportunity to surface. California requires 40 days from death (Probate Code § 13100); Texas requires 30 days (Estates Code § 205.001); New York requires 30 days from issuance of letters (SCPA § 1304); Washington requires 40 days (RCW § 11.62.010); and Florida's summary administration can be filed immediately but requires a statement that creditors have been paid or that the statute of limitations on creditor claims has run.
Crucially, the small-estate affidavit does not shorten the creditor claim period the way a formal probate does. In a formal probate, the published notice to creditors starts a running clock (3 to 6 months depending on state) after which most claims are barred. With a small-estate affidavit, no such clock is started — creditors retain whatever rights they have under state law, often one to four years from the date of death. The affiant's sworn statement that creditors will be paid creates personal liability: if the affiant distributes the assets to heirs and a creditor later sues, the affiant can be on the hook personally.
Why real estate is usually excluded
Most small-estate procedures cover personal property only — cash, securities, vehicles, and tangible personal effects. Real estate is excluded because title transfer requires recording a deed, and recording requires either a court order (Letters Testamentary) or a specific statutory mechanism. The few states that allow small-estate affidavits for real property usually impose a separate, lower threshold or require an additional court filing.
Texas offers a unique exception: an affidavit of heirship for real property, recorded in the county deed records, can transfer title to a homestead passing to a surviving spouse or minor child without probate (Estates Code Chapter 203). The affidavit must be signed by two disinterested witnesses who knew the decedent's family history, and the title is generally considered marketable after five years. California's affidavit procedure under Probate Code § 13100 excludes real property entirely — a separate Probate Code § 13200 procedure handles real property valued under $55,425 (adjusted periodically) through a court petition that is shorter than full probate but still requires a filing.
Common pitfalls and limitations
Three pitfalls account for most of the problems that arise with small-estate affidavits. First, affiants often miscalculate the threshold by failing to exclude non-probate assets — an estate with $184,500 in probate bank accounts and $200,000 in an IRA payable to the estate (rather than to a named beneficiary) does not qualify, because the IRA is now a probate asset. Second, affiants sometimes pay themselves or other heirs before settling creditor claims, leaving them personally exposed when a credit card company or medical provider later demands payment. Third, some institutions — particularly national brokerages — have internal policies that override state law, demanding Letters Testamentary even when the statute authorizes affidavit collection. Pushback usually requires escalating to the institution's legal department or filing a formal complaint with the state banking regulator.
The small-estate affidavit is the simplest probate-avoidance tool, but it only works for modest, simple estates. For larger or more complex situations, a revocable living trust established during life is the gold standard — see our guide to avoiding probate for the full menu of options, and use our probate fee calculator to estimate what formal probate would cost if the affidavit is not available.
Last reviewed June 9, 2026. This article is informational and does not constitute legal, tax, or financial advice. Consult a qualified professional for guidance specific to your situation.