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.
Tennessee Summary:
Under Tennessee statute, where as estate
is valued at less than $25,000, an interested party may, forty-five (45)
days after the death of the decedent, file with the clerk of court a small
estate affidavit, and proceed to use said affidavit to collect any debts
owed to the decedent.
Tennessee Requirements:
Tennessee requirements are set forth in the statutes below.
30-4-101. Short title.
This chapter shall be known as "The Small Estates Act."
30-4-102. Definitions.
Unless the context clearly requires otherwise, the following terms have the meanings ascribed to them:
(1) "Affiant" means the person executing the affidavit provided for in § 30-4-103;
(2) "Court" means the court then exercising probate jurisdiction in the county in which the decedent had legal residence on the date of death;
(3) "Person" means an individual, partnership, firm, business trust, corporation or other legal entity, and shall include both singular and plural and masculine and feminine, as appropriate;
(4) "Property" means personal property, or any interest therein, other than personal property held jointly with right of survivorship, owned by decedent on the date of death, including insurance on the decedent's life payable to the estate but excluding insurance on decedent's life payable to beneficiaries other than the estate; and
(5) "Small estate" means the estate of a decedent in which the value of the property does not exceed twenty-five thousand dollars ($25,000).
30-4-103. Affidavit - Filing fees - Bond - Discharge.
Whenever a decedent leaves a small estate, it may be administered in the following manner:
(1) After the expiration of forty-five (45) days from the date of decedent's death, provided no petition for the appointment of a personal representative of the decedent has been filed in that period of time and decedent's estate is a small estate within the meaning of this chapter, one (1) or more of decedent's competent, adult legatees or devisees, if a will was left, or heirs or next of kin, if no will was left, or in either a testate or intestate estate, the largest creditor proving such creditor's debt on oath before the court, shall file with the clerk of the court an affidavit which shall set forth the following facts:(A) Whether or not decedent left a will, and if so, the original shall be filed with the affidavit;
(B) A list of unpaid debts left by decedent and the name and address of each creditor and the amount due such creditor;
(C) An itemized description and the value of all of decedent's property, the names and addresses of all persons known to have possession of any of decedent's property, and a schedule of all insurance on decedent's life payable to the decedent's estate;
(D) The name, age, address and relationship, if any, of each devisee, legatee or heir entitled to receive any of decedent's property; and
(E) Whether or not the affiant elects to give notice to creditors in the manner required for regular administration, such election being authorized in the affiant's discretion. If such election is made, all the provisions of §§ 30-2-306 -0-2-321 shall there upon apply.
The form of the affidavit required by this section shall disclose that the affiant evidences by signature that, subject to the penalty for perjury, the affidavit is not false or misleading and that the affiant is mindful of all duties imposed upon the affiant by this chapter. No clerk or assistant shall be liable as a result of services rendered to the affiant in good faith in completing the affidavit based upon information furnished by the affiant.
Upon the motion of one (1) or more of the decedent's competent, adult legatees or devisees if a will was left, or the decedent's heirs or next of kin if no will was left, or upon its own motion, the court may, in its discretion for good cause shown, reduce the forty-five-day period required by this subsection.
(2) The court shall receive and file the original affidavit as a part of the court's permanent records, shall assign it a number and shall index it as other estates are indexed. The clerk shall deliver to the affiant as many certified copies of the affidavit as are requested.
(3) The clerk shall send a certified copy of the affidavit to the commissioner of revenue.
(4) The clerk shall charge and receive such fees for processing a small estate as authorized and provided in § 8-21-401.
(5) The affiant shall make bond payable to the state for the benefit of those entitled with two (2) or more sufficient sureties or one (1) corporate surety. The amount of the bond shall equal the value of the decedent's estate to be administered under this chapter. However, bond shall not be require if the provisions of § 30-1-201 would not so require.
(6) The affiant and the sureties on the affiant's bond may obtain discharge from liability under the bond in either of two (2) ways:(A) If the affiant did not elect to give notice to creditors in the manner prescribed for regular administration, and if:(i) No petition for appointment of an administrator; or(B) The court may enter an order discharging the affiant and the sureties on the affiant's bond after the affiant files:
(ii) No petition for probate of the decedent's will, if any, is filed; the affiant and the sureties on the affiant's bond shall be automatically discharged on the second anniversary of the filing of the affidavit; or(i) Either the tax receipt issued pursuant to § 67-8-420, or the certificate issued pursuant to § 67-8-409; and
(ii) An affidavit that each debt of the decedent is paid.
30-4-104. Administration by affiant.
(a) Every person indebted to decedent's estate, or having possession of any property belonging to the estate, or acting as registrar or transfer agent of any shares of stock, bonds, notes or other evidence of ownership, indebtedness, property or right belonging to decedent's estate shall be furnished a copy of the affidavit by the affiant, duly certified to by the clerk of the court, and upon receipt of the copy of affidavit, and upon demand of the affiant, shall pay, transfer and deliver to affiant all such indebtedness owing by and other property in possession of or subject to registration and/or transfer by, the person to whom the copy of affidavit has been delivered.
(b) Every person making payment, transfer or delivery of property belonging to a decedent's estate to the affiant pursuant to the provisions of this chapter shall be released and discharged from all further liability to the estate and its creditors to the same extent as if such payment, transfer or delivery were made to the duly appointed, qualified and acting personal representative of the decedent, and the person making such payment, transfer or delivery shall not be required to see to the application thereof or to inquire into the truth or completeness of any statement in the affidavit.
(c) If decedent left a will his property shall be distributed as provided therein, and if he left no will it shall go to his heirs as provided by law in case of other intestacies, and both the affiant and the person to whom payment, transfer or delivery of any such property is made by affiant shall be and remain liable, to the extent of the value of the property so received, to unpaid creditors of decedent and to every other person having a prior claim against decedent's estate or prior right to any of decedent's property, and also shall be accountable to any personal representative of the decedent thereafter appointed.
(d) Affiant shall file returns and pay the tax on property in the decedent's estate, as required by title 67, chapter 8, parts 3-5, as now or hereafter amended, revised or recodified.
(e) If any person having possession of any of decedent's property, upon receipt of a copy of the affidavit certified by the clerk, refuses to pay, transfer or deliver the property to or at the direction of the affiant, such property may be recovered or transfer and delivery thereof compelled in an action brought in any court of competent jurisdiction for such purpose upon proof of the facts required to be stated in the affidavit, and costs of such proceeding shall be adjudged against a person wrongfully refusing to pay, transfer or deliver the property.
30-4-105. Construction of chapter.
This chapter shall be cumulative to existing law relating to the administration of decedents' estates and is intended to provide an optional and alternative method for the administration of small estates
Small Estate Affidavit for Estates under 25,000
