Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Delaware Summary:
Under Delaware statute, where as estate is valued at less than
$20,000, an interested party may, thirty (30) days after the death of the
decedent, proceed to distribute the assets of the estate by the filing
of an affidavit requesting distribution of the assets of the estate without
a grant of letters of administration.
Delaware Requirements:
Delaware requirements are set forth in the statutes below.
TITLE 12 Decedents' Estates and Fiduciary Relations
PART IV Administration of Decedents' Estates
CHAPTER 23. ACCOUNTING AND DISTRIBUTION § 2306. Distribution
of decedent's property without grant of letters where estate assets do
not exceed $20,000.
(a) The spouse of a decedent or any person who is a grandparent of the decedent, a lineal descendant of a grandparent of the decedent, the personal representative of any of the foregoing who may be deceased, or the guardian or trustee of any of the foregoing who may be incapacitated, or the trustee of a trust created by the decedent, or a funeral director licensed in the State, shall be entitled to the personal estate of the decedent for the purpose of making distribution thereof in accordance with the decedent's will or, if there be no will, with Chapter 5 of this title without awaiting the appointment of a personal representative or probate of a will when:
(1) No petition for the appointment of a personal representative is pending or has been granted;
(2) Thirty days have elapsed since the death of the decedent;
(3) The value of the personal estate of the decedent other than property described in subsections (b) and (c) of §1901 of this title and other than jointly owned property, does not exceed $20,000;
(4) All known debts of the decedent are paid or provided for;
(5) The surviving spouse's allowance, pursuant to § 2308 of this title, has been paid, provided for, waived or has expired by lapse of time pursuant to subsection (b) of § 2308 of this title;
(6) Decedent did not own solely owned real estate located in Delaware; and
(7) There is furnished to any person owing any money, having custody of any property or acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right of the decedent an affidavit showing the existence of the foregoing conditions and the right of the affiant to receive such money or property or to have such evidence transferred for the purpose set forth in this subsection.
(b) Preference for receiving the personal estate of the decedent under this section for the purpose of making distribution thereof shall be given to the spouse, any child, any parent, any sibling, any grandchild or any grandparent of the decedent, or to a funeral director licensed in the State, in that order. There shall be no order of preference among the remaining persons or entities entitled to receive the personal estate pursuant to subsection (a) of this section.
(c) The next of kin of a decedent shall have the right upon the death of the decedent:
(1) To take possession of the decedent's motor vehicle or vehicles; and
(2) To enter any premises for the sole and exclusive purpose of removing therefrom clothing belonging to the decedent to be used for the burial or viewing of the decedent.
If no next of kin is available, a funeral director may have access to enter the premises for the aforementioned purpose of securing clothes only. The Register of Wills shall provide a form limited to facilitating action taken pursuant to this subsection. Such a form must be obtained prior to any person acting pursuant to this subsection.
(26 Del. Laws, c. 259, § 1; Code 1915, § 3380; Code 1935, § 3845; 46 Del. Laws, c. 165, § 1; 12 Del. C. 1953, § 2305; 53 Del. Laws, c. 370; 56 Del. Laws, c. 295; 59 Del. Laws, c. 68, § 1; 59 Del. Laws, c. 384, § 1; 63 Del. Laws, c. 281, § 1; 64 Del. Laws, c. 252, § 5; 66 Del. Laws, c. 350, §§ 1, 2; 70 Del. Laws, c. 114, §§ 1, 2; 74 Del. Laws, c. 227, §§ 1, 2; 75 Del. Laws, c. 189, § 1.)
§ 2307. Effect of distribution without letters.
(a) The person making payment, delivery, transfer or issuance pursuant to the affidavit described in § 2306 of this title shall be released to the same extent as if made to the personal representative of the decedent and the person shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit, but the distributees to whom payment, delivery, transfer or issuance is made shall be answerable therefor to any person having a prior right and be accountable to any intestate distributee or to any personal representative thereafter appointed.
(b) If the person to whom an affidavit is delivered pursuant to § 2306 of this title refuses to pay, deliver, transfer or issue the property, it may be recovered or compelled in an action brought in the Court of Chancery for such purposes by or on behalf of the distributees entitled thereto, upon proof of the facts required to be stated in the affidavit.
(26 Del. Laws, c. 259, § 2; Code 1915, § 3381; 30 Del. Laws, c. 209, § 1; Code 1935, § 3846; 46 Del. Laws, c. 165, § 1; 12 Del. C. 1953, § 2306; 59 Del. Laws, c. 68, § 2; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.)
§ 2308. Surviving spouse's allowance.
(a) The surviving spouse of any decedent shall be entitled to receive and the executor or administrator shall pay to such spouse as soon as convenient, in the manner provided in this section, cash up to the amount of $2,000 out of the estate of the decedent, which payment shall be made in the order of preference of claims against the estate in § 2105 of this title, as amended. The foregoing provision shall not affect any other rights to which such spouse may be entitled, either under the will of the decedent or the intestacy laws of this State.
(b) The allowance to the surviving spouse of a decedent provided for in subsection (a) of this section shall be of no effect unless and until such spouse shall, within 9 months from the date of death or 6 months from the date of the granting of letters, testamentary or of administration, whichever shall be the shorter period, notify in writing the Register of Wills of the county wherein the letters were granted and the executor or administrator of such spouse's demand that a specific sum, not exceeding $2,000, be so set aside out of the proceeds of the estate of the decedent.
(c) The allowance provided for in subsection (a) of this section shall be considered to be a debt of the estate, and the executor or administrator may sell so much of the property of the decedent as will enable the executor or administrator to pay the allowance in the same manner as the executor or administrator may be enabled to do by law for the payment of other debts of the decedent or of the estate.
(Code 1915, § 3415; 38 Del. Laws, c. 185, § 1; Code 1935, § 3876; 43 Del. Laws, c. 211, § 1; 12 Del. C. 1953, § 2307; 50 Del. Laws, c. 16, § 1; 50 Del. Laws, c. 378, §§ 1-3; 59 Del. Laws, c. 384, § 1; 63 Del. Laws, c. 281, § 2; 70 Del Laws, c. 186, § 1;75 Del. Laws, c. 189, § 2.)
§ 2309. Recordation of death certificates.
In all cases where there is an interest in real property owned by the decedent at the time of death, a certified copy of the death certificate of the decedent shall be filed in the office of the Registrar of Wills in and for the county wherein the interest in the real property is situated.
(66 Del. Laws, c. 368, § 1.)
Small Estate Affidavit for Estates under 20,000
