It is not rare for us to have our estate clients ask us how they can avoid “probate”. During the estate planning process we discuss the pros and cons and options that are available to them.
Once someone has passed, the options are more limited.
One tool that may help those loved ones that are left behind to finalize their lost family or friend’s affairs is the Virginia Small Estate Affidavit.
Generally, the affidavit may be used for the transfer of personal assets for estates with less than $50,000.00 of personal assets (i.e. does not include their house and various other assets) to transfer certain assets. Virginia Code Section 64.2-601 outlines when this affidavit may be used.
More specifically, any person having possession of a small asset shall turn over a personal asset (a bank account, check, tax refund, bonds, piece of art, etc.) to the listed successor(s) if:
- That the value of the decedent’s entire personal probate estate as of the date of the decedent’s death, wherever located, does not exceed $50,000;
- That at least 60 days have elapsed since the decedent’s death (you will often need a certified copy of the death certificate to prove this);
- That no application for the appointment of a personal representative is pending or has been granted in any jurisdiction;
- That the decedent’s will, if any, was duly probated;
- That the claiming successor is entitled to payment or delivery of the small asset, and the basis upon which such entitlement is claimed (i.e. you have the right to inherit the asset);
- The names and addresses of all successors, to the extent known;
- The name of each successor designated to receive payment or delivery of the small asset on behalf of all successors; and
- The successor(s) sign the affidavit in front of a notary.
By use of this affidavit, please note that you are not avoiding a duty to pay your loved ones debts. Those that sign their name to the affidavit have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth.
Please note – as outlined above and in the Code, if there is a will, it must be admitted to probate – but there is no requirement that any executor or personal representative be appointed.
Should you believe that this form would apply in your situation, you can find the form here or here.
In addition, Virginia Code Section 64.2-602, allows for the payment or delivery of small assets valued at $25,000 or less without the need of the affidavit – if the holder of the small asset agrees to transfer the asset without the requirement of the affidavit (the code section is permissive, not mandatory).
The section states that “any person having possession of a small asset valued at $25,000 or less may pay or deliver the small asset to any successor provided that:
1. At least 60 days have elapsed since the decedent’s death; and
2. No application for the appointment of a personal representative is pending or has been granted in any jurisdiction.
Like in the case of the affidavit, the designated successor shall have a fiduciary duty to safeguard and promptly pay or deliver the small asset as required by the laws of the Commonwealth to the other successors, if any.
If you have questions about how to use the Virginia Small Estate Affidavit or if it applies in your situation, feel free to contact us at 804.423.1382 or info@wmmlegal.com to set up an initial consult. We would be happy to help.
