My sister died with little property and no heirs, so can I file a Small Estate Affidavit?
Full Question:
Answer:
The following are Indiana statutes:
IC 29-1-8-1 (a) Forty-five (45) days after the death of a decedent and....
(a) Forty-five (45) days after the death of a decedent and upon being
presented an affidavit that complies with subsection (b), a person:
(1) indebted to the decedent; or
(2) having possession of personal property or an instrument evidencing a
debt, an obligation, a stock, or a chose in action belonging to the
decedent;shall make payment of the indebtedness or deliver the personal property or
the instrument evidencing a debt, an obligation, a stock, or a chose in
action to a person claiming to be entitled to payment or delivery of
property of the decedent.
(b) The affidavit required by subsection (a) must be an affidavit made by
or on behalf of the claimant and must state the following:
(1) That the value of the gross probate estate, wherever located (less
liens and encumbrances), does not exceed fifty thousand dollars ($50,000).
(2) That forty-five (45) days have elapsed since the death of the
decedent.
(3) That no application or petition for the appointment of a personal
representative is pending or has been granted in any jurisdiction.
(4) The name and address of each other person that is entitled to a share
of the property and the part of the property to which each person is
entitled.
(5) That the claimant has notified each person identified in the
affidavit of the claimant's intention to present an affidavit under this
section.
(6) That the claimant is entitled to payment or delivery of the property
on behalf of each person identified in the affidavit.
(c) If a motor vehicle or watercraft (as defined in IC 9-13-2-198.5) is
part of the estate, nothing in this section shall prohibit a transfer of
the certificate of title to the motor vehicle if five (5) days have elapsed
since the death of the decedent and no appointment of a personal
representative is contemplated. A transfer under this subsection shall be
made by the bureau of motor vehicles upon receipt of an affidavit
containing a statement of the conditions required by subsection (b)(1) and
(b)(6). The affidavit must be duly executed by the distributees of the
estate.
(d) A transfer agent of a security shall change the registered ownership
on the books of a corporation from the decedent to a claimant upon the
presentation of an affidavit as provided in subsection (a).
(e) For the purposes of subsection (a), an insurance company that, by
reason of the death of the decedent, becomes obligated to pay a death
benefit to the estate of the decedent is considered a person indebted to
the decedent.
(f) For purposes of subsection (a), property in a safe deposit box rented
by a decedent from a financial institution organized or reorganized under
the law of any state (as defined in IC 28-2-17-19) or the United States is
considered personal property belonging to the decedent in the possession of
the financial institution.
IC 29-1-8-1.5 (a) This section does not apply to the following:
(a) This section does not apply to the following:
(1) Real property owned by a decedent.
(2) The contents of a safe deposit box rented by a decedent from a
financial institution organized or reorganized under the law of any state
(as defined in IC 28-2-17-19) or the United States.
(b) After the death of a decedent, a person:
(1) indebted to the decedent; or
(2) having possession of:
(A) personal property;
(B) an instrument evidencing a debt;
(C) an obligation;
(D) a chose in action;
(E) a life insurance policy;
(F) a bank account; or
(G) intangible property, including annuities, fixed income investments,
mutual funds, cash, money market accounts, or stocks;belonging to the decedent; shall furnish the date of death value of the
indebtedness or property and the names of the known beneficiaries of
property described in this subsection to a person who presents an affidavit
containing the information required by subsection (c).
(c) An affidavit presented under subsection (b) must state:
(1) the name, address, Social Security number, and date of death of the
decedent;
(2) the name and address of the affiant, and the relationship of the
affiant to the decedent;
(3) that the disclosure of the date of death value is necessary to
determine whether the decedent's estate can be administered under the
summary procedures set forth in this chapter; and
(4) that the affiant is answerable and accountable for the information
received to the decedent's personal representative, if any, or to any other
person having a superior right to the property or indebtedness.
(d) A person presented with an affidavit under subsection (b) must
provide the requested information within three (3) business days after
being presented with the affidavit.
(e) A person who acts in good faith reliance on an affidavit presented
under subsection (b) is immune from liability for the disclosure of the
requested information.
(f) A person who:
(1) is presented with an affidavit under subsection (b); and
(2) refuses to provide the requested information within three (3)
business days after being presented with the affidavit;is liable to the estate of the decedent.
(g) A plaintiff who prevails in an action to compel a person presented
with an affidavit under subsection (b) to accept the authority of the
affiant or in an action for damages arising from a person's refusal to
provide the information requested in an affidavit presented under
subsection (b) shall recover the following:
(1) Three (3) times the amount of the actual damages.
(2) Attorney's fees and court costs.
(3) Prejudgment interest on the actual damages from the date the
affidavit was presented to the person.
IC 29-1-8-2 The person paying, delivering, transferring, or issuing....
The person paying, delivering, transferring, or issuing personal property
or the evidence thereof pursuant to affidavit is discharged and released to
the same extent as if he dealt with a personal representative of the
decedent. He is not required to see to the application of the personal
property or evidence thereof or to inquire into the truth of any statement
in the affidavit. If any person to whom an affidavit is delivered refuses
to pay, deliver, transfer, or issue any personal property or evidence
thereof, it may be recovered or its payment, delivery, transfer, or
issuance compelled upon proof of their right in a proceeding brought for
the purpose by or on behalf of the persons entitled thereto. Any person to
whom payment, delivery, transfer or issuance is made is answerable and
accountable therefor to any personal representative of the estate or to any
other person having a superior right.
IC 29-1-8-3 (a) If it appears that the value of a decedent's gross
probate....
(a) If it appears that the value of a decedent's gross probate estate,
less liens and encumbrances, does not exceed the sum of:
(1) fifty thousand dollars ($50,000);
(2) the costs and expenses of administration; and
(3) reasonable funeral expenses; the personal representative or a person
acting on behalf of the distributees, without giving notice to creditors,
may immediately disburse and distribute the estate to the persons entitled
to it and file a closing statement as provided in section 4 of this
chapter.
(b) If an estate described in subsection (a) includes real property, an
affidavit may be recorded in the office of the recorder in the county in
which the real property is located. The affidavit must contain the
following:
(1) The legal description of the real property.
(2) The following statement: "It appears that the decedent's gross
probate estate, less liens and encumbrances, does not exceed the sum of the
following: fifty thousand dollars ($50,000), the costs and expenses of
administration, and reasonable funeral expenses.".
(3) The name of each person entitled to at least a part interest in the
real property as a result of a decedent's death, the share to which each
person is entitled, and whether the share is a divided or undivided
interest.
(4) A statement which explains how each person's share has been
determined.
IC 29-1-8-4 (a) Unless prohibited by order of the court and except for....
(a) Unless prohibited by order of the court and except for estates being
administered by supervised personal representatives, a personal
representative or a person acting on behalf of the distributees may close
an estate administered under the summary procedures of section 3 of this
chapter by filing with the court, at any time after disbursement and
distribution of the estate, a verified statement stating that:
(1) to the best knowledge of the personal representative or person acting
on behalf of the distributees the value of the gross probate estate, less
liens and encumbrances, did not exceed the sum of:
(A) fifty thousand dollars ($50,000);
(B) the costs and expenses of administration; and
(C) reasonable funeral expenses;
(2) the personal representative or person acting on behalf of the
distributees has fully administered the estate by disbursing and
distributing it to the persons entitled to it; and
(3) the personal representative or person acting on behalf of the
distributees has sent a copy of the closing statement to all distributees
of the estate and to all creditors or other claimants of whom the personal
representative or person acting on behalf of the distributees is aware and
has furnished a full account in writing of the administration to the
distributees whose interests are affected.
(b) If no actions, claims, objections, or proceedings involving the
personal representative or person acting on behalf of the distributees are
filed in the court within three (3) months after the closing statement is
filed, the appointment of the personal representative or the duties of the
person acting on behalf of the distributees terminate.
(c) A closing statement filed under this section has the same effect as
one (1) filed under IC 29-1-7.5-4.
(d) A copy of any affidavit recorded under section 3(b) of this
chapter must be attached to the closing statement filed under this section.
IC 29-1-8-4.5 The person claiming to be entitled to payment or....
The person claiming to be entitled to payment or delivery of the property
belonging to the decedent may present to the court having jurisdiction over
the decedent's estate an affidavit containing a statement of the conditions
required under section (1)(b) of this chapter. Upon receipt of the
affidavit, the court may, without notice and hearing, enter an order that
the claimant is entitled to payment or delivery of the property.
IC 29-1-8-8 Whenever, after the inventory has been filed by a personal....
Whenever, after the inventory has been filed by a personal
representative, it is established that the estate of a decedent, exclusive
allowance to the surviving spouse or dependent children, does not exceed an
amount sufficient to pay the claims of classes 1 to 6 inclusive, the
personal representative upon order of the court shall pay the same in the
order provided and thereafter present his account with an application for
the settlement and allowance thereof. Thereupon, the court, with or without
notice, may adjust, correct, settle, allow or disallow such account, and,
if the account is settled and allowed, decree final distribution, discharge
the personal representative and close the administration.
IC 29-1-8-9 This article shall not be construed to prevent the....
This article shall not be construed to prevent the application by any
person, association or corporation of all or any portion of any obligation
owed to a decedent's estate and designed, intended or created for the
purpose of paying the funeral expenses or expenses of the last illness of
the deceased from directly applying the proceeds of such obligation for
such purpose. The payment of such expenses by the obligor or person holding
such funds shall be a complete defense to the extent of such payment to the
demand of any person on behalf of such estate or any other claimant.
The following are Missouri statutes:
473.097. Small estate — distribution of assets without letters, when —
affidavit — procedure — fee. —
1. Distributees of an estate which consists of personal property or
real property or both personal and real property have a defeasible
right to the personal property, and are entitled to the real property
of such estate, as provided in this section, without awaiting the
granting of letters testamentary or of administration, if all of the
following conditions are met:
(1) The value of the entire estate, less liens, debt, and
encumbrances, does not exceed forty thousand dollars;
(2) Thirty days have elapsed since the death of the decedent and no
application for letters or for administration or for refusal of letters
under section 473.090 is pending or has been granted, or if such
refusal has been granted and subsequently revoked;
(3) A bond, in an amount not less than the value of the personal
property, approved by the judge or clerk of the probate division is
filed by the person making the required affidavit conditioned upon the
payment of the debts of the decedent, including any debts to the state
of Missouri, the expenses of funeral and burial and compliance with
future orders of the court in relation to the estate of the decedent;
and further conditioned that any part of the property to which the
distributee is not entitled will be delivered to the persons entitled
to the property under the law. Liability of the sureties on the bonds
provided for in this section terminates unless proceedings against them
are instituted within two years after the bond is filed; except that,
the court may dispense with the filing of a bond if it finds that the
same is not necessary;
(4) A fee, in the amount prescribed in subsection 1 of section 483.580,
RSMo, and when required, the publication cost of the notice to creditors
are paid or the proof of payment for such publication is provided to the
clerk of the probate division.
2. Notwithstanding the limitation periods set out in section 473.050,
the affidavit required by this section may be made by the person
designated as personal representative under the will of the decedent,
if a will has been presented for probate within the limitation periods
specified in section 473.050, otherwise by any distributee entitled to
receive property of the decedent any time after thirty days after
decedent's death, and shall set forth all of the following:
(1) That the decedent left no will or, if the decedent left a will,
that the will was presented for probate within the limitation periods
specified in section 473.050;
(2) That all unpaid debts, claims or demands against the decedent or
the decedent's estate and all estate taxes due, if any, on the property
transfers involved have been or will be paid, except that any liability
by the affiant for the payment of unpaid claims or demands shall be
limited to the value of the property received;
(3) An itemized description and valuation of property of the decedent.
As used in this subdivision, the phrase "property of the decedent" shall
not include property which was held by the decedent as a tenant by the
entirety or a joint tenant at the time of the decedent's death;
(4) The names and addresses of persons having possession of the
property;
(5) The names, addresses and relationship to the decedent of the
persons entitled to and who will receive, the specific items of property
remaining after payment of claims and debts of the decedent, included in
the affidavit;
(6) The facts establishing the right to such specific items of
property as prescribed by this section.The certificate of the clerk shall be annexed to or endorsed on the
affidavit and shall show the names and addresses of the persons entitled
to the described property under the facts stated in the affidavit and
shall recite that the will of decedent has been probated or that no will
has been presented to the court and that all estate taxes on the
property, if any are due, have been paid.
3. A copy of the affidavit and certificate shall be filed in the
office of the clerk of the probate division and copies of the affidavit
and certificate shall be furnished by the clerk.
4. The distributees mentioned in this section may establish their right
to succeed to the real estate of the decedent by filing a copy of the
foregoing affidavit and certificate of the clerk in the office of the
recorder of deeds of each county where the real property is situated.
5. When the value of the property listed in the affidavit is more
than fifteen thousand dollars, the clerk shall cause to be published in
a newspaper of general circulation within the county which qualifies
under chapter 493, RSMo, a notice to creditors of the decedent to file
their claims in the court or be forever barred. The notice shall be
published once a week for two consecutive weeks. Proof of publication
of notice pursuant to this section shall be filed not later than ten
days after completion of the publication. The notice shall be in
substantially the following form:
To all persons interested in the estate of _______________, Decedent:
On the ___________ day of ________________________, 20___, a small
estate affidavit was filed by the distributees for the decedent under
section 473.097, RSMo, with the probate division of the circuit court
of __________________ County, Missouri.
All creditors of the decedent, who died on _______________, 20___,
are notified that section 473.444 sets a limitation period that would
bar claims one year after the death of the decedent. A creditor may
request that this estate be opened for administration.
Receipt of this notice should not be construed by the recipient to
indicate that the recipient may possibly have a beneficial interest in
the estate. The nature and extent of any person's interest, if any, may
possibly be determined from the affidavit on this estate filed in the
probate division of the circuit court of _____________________ County,
Missouri.
Date of first publication is ______________, 20___
_____________________________
Clerk of the Probate Division of the Circuit Court
____________ County, Missouri
6. Upon compliance with the procedure required by this section, the
personal property and real estate involved shall not thereafter be
taken in execution for any debts or claims against the decedent, but
such compliance has the same effect in establishing the right of
distributees to succeed to the property as if complete administration
was had; but nothing in this section affects the right of secured
creditors with respect to such property.
7. The affiant shall collect the property of decedent described in the
affidavit. The property of decedent shall be liquidated by the affiant to
the extent necessary to pay debts of decedent. If the decedent's property
is not sufficient to pay such debts, abatement of the shares of the
distributees shall occur in accordance with section 473.620. The affiant
shall distribute the remaining property to such persons identified in the
affidavit as required in subdivision (5) of subsection 2 of this section
who are entitled to receive the specific items of personal property, as
described in the affidavit, or to have any evidence of such property
transferred to such persons. To the extent necessary to facilitate
distribution, the affiant may liquidate all or part of decedent's
property.
473.100. Effect of acquittances by distributees of small estate. —
The person making payment, delivery, transfer or issuance of personal
property or evidence thereof pursuant to the affidavit prescribed in
section 473.097 is discharged and released to the same extent as if
made to an executor or administrator of the decedent, and he is not
required to see to the application thereof or to inquire into the truth
of any statement in the affidavit if made by any other person. If any
person to whom the affidavit is delivered refuses to pay, deliver,
transfer, or issue any personal property or evidence thereof, it may be
recovered or its payment, delivery, transfer, or issuance compelled in
an action brought for that purpose by or on behalf of the persons
entitled thereto under section 473.097, upon proof of the defeasible
right declared by such section. Any person to whom payment, delivery,
transfer or issuance is made is answerable and accountable therefor to
any administrator or executor of the estate or to the surviving spouse
or minor children of the decedent who proceed under section 473.090 or
473.093 or to any other person having a superior right.
473.107. Small estate appraised, when. —
The probate division of the circuit court in its discretion may order
the appraisal of the property before a certificate is made under section
473.097 or before an order refusing letters is made under section 473.090.
The appraisal shall be made by one or more appraisers appointed by the
court and the cost thereof shall be paid by the persons entitled to the
property in accordance with the order of the court.
