When can you use a small estate affidavit in Missouri?
If you are trying to settle an estate under $40,000, you can use a small estate affidavit under certain circumstances. If the estate is under $15,000 you can file it yourself – and we have a completely fillable PDF version of Missouri’s small estate affidavit you can download below. If the estate is over $15,000 and under $40,000 you can still use the affidavit, but an attorney has to file it.
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What a small estate affidavit does.
The small estate affidavit is a shortcut around full probate administration. Instead of appointing a personal representative and running a court-supervised estate for a year or more, an heir files one sworn affidavit. Once the court certifies it, that certified affidavit — together with a death certificate — becomes the key that unlocks the decedent’s assets so they can be collected and distributed.
Once you have identified all of the assets of a decedent, including doing a personal property search in each state the person lived and worked in, along with the headquarters of any company they worked with, and searching for any unknown life insurance policies, you can use this form and file it with the circuit clerk, as long as all assets are below the $15,000 threshold.
If at any time this becomes problematic, we are always ready to assist you with any issues or problems you encounter.
Three levels of probate in Missouri.
Eligibility turns on the value of the estate after subtracting liens, debts, and encumbrances. Where the estate falls determines whether you can use the affidavit at all — and whether the court requires extra steps.
$15,000 or less
Anyone that is an heir may file a notarized affidavit with the court in the county in which the deceased lived. A death certificate and release from Missouri Medicaid need to be filed with the affidavit. From there, the clerk will certify the affidavit, and you can use a paper copy of it to collect the estate’s assets.
$15,000 to $40,000
When the estate assets exceed $15,000 you have to retain counsel because of two things, first you have to publish a notice to creditors, and if a creditor files a claim, you need someone who knows how to legally challenge the claim against the estate. You also have to keep the estate open for 6 months before you can distribute estate assets. Failing to wait the required time period could result in an executor (you) being liable to the creditor, which is why you need to retain an attorney.
Above $40,000
Anything over $40,000 in estate assets in Missouri requires full probate. This usually takes 6 months (rarely) to about 12 to 18 months to navigate the full process. An attorney is required because there are many fiduciary duties that an executor has, and this is where I find it that we can help you the most. The full probate process requires gathering all of an estate’s assets, making sure all debts are paid, and then distributing the assets after getting clearance from the IRS.
How do you value an estate’s size?: the threshold is measured on the value of property titled solely in the decedent’s name, and is valued on the date of their death. If there is a beneficiary deed, a TOD on a car or bank account, that asset is not an “estate” asset. We can help you determine that as well with a free, no obligation consultation.
What is not a probate asset.
Assets that are not titled solely in the name of the deceased are the only assets you need to worry about. Assets that are not probate assets are:
- Life insurance with a named beneficiary
- Retirement accounts (IRA, 401k) with a named beneficiary
- Accounts with POD/TOD (payable-on-death / transfer-on-death) designations
- Property held in a revocable living trust
- Jointly held property with right of survivorship
- Real property with a beneficiary deed
How the small estate affidavit process works.
While a small estate affidavit shortcuts the probate process by removing the court’s direct oversight of you as the executor, you still have to follow the steps to properly administer an estate. Just because it is a shortcut, you still have fiduciary duties to creditors, beneficiaries and the IRS.
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File with the probate court
File the completed affidavit with the probate division of the circuit court in the county where the decedent lived, along with the filing fee and an itemized list of assets, the people entitled to them, and creditors, along with the death certificate and a release from MO HealthNet.
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Notarize the affidavit
You swear under oath, that the affidavit is accurate. You are swearing that all assets are being listed, there are no known other assets of the decedent, and that you will pay all debts (including taxes), and make an accurate distribution to all beneficiaries. You are legally binding yourself to these obligations, and any errors or omissions on your part could be actionable by any of the parties.
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The court certifies yoru affidavit
The court reviews the affidavit and, once satisfied, the clerk certifies it. If the listed property exceeds $15,000, this is also when the notice to creditors is published. Some courts publish the notice on your behalf, others require you to publish the notice. What the notice does is it starts the clock for any creditors to come out and make a claim against the estate within six months. If they fail to make a claim, they are barred, and that debt cannot be collected. If they do make a claim, you can pay it, or contest it. Many times they will not follow through with a contested claim and you won’t have to pay it. If you do pay a claim and you shouldn’t have, the beneficiaries of the state can seek compensation for that claim from you personally.
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Open an estate account
Once you have a certified affidavit, you need to open up an estate account and create an EIN for the estate. Many people miss this step, and this is where a lot of people using a small estate affidavit get into trouble. You need to show a paper trail of all of the assets collected, the debts that are paid, and most importantly to show the beneficiaries what was paid and why. It is also to note that most people do need to file a final tax return, and also the estate itself, especially if it generates income before all assets are distributed will need to file a tax return. If you do not do this, the IRS will seek the taxes owed from you personally, so this is a key step in the process.
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Collect the assets
In order to collect estate assets to be deposited into the estate account you will have to present a copy of the afficavit (it is downloadable from CaseNet), along with a copy of the death certificate. Some financial institutions will require an actual certified death certificate for larger accounts, but generally a copy of both documents is enough to have them issue a check to the estate account you created. Most financial institutions will not release assets to anything other than an estate account, which is why that should be your first step after your affidavit is issued by the clerk.
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Pay the debts of the estate
It is important to work with the deceased’s accountant to make sure that all taxes of the estate are paid. If you have an estate over $15,000 you also want to make sure that any debt that is claimed within the 6 months after the affidavit is certified are either paid, or challenged. This is an important step that many people miss.
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Distribute the assets
Once you have gone through the creditor challenge period (the 6 months), you can make an initial distribution to the beneficiaries. Even with a small estate, you want to ensure that there are no taxes owed, or your withhold enough to cover both the taxes the decedent owed, and the taxes on any income the estate made. Even though this is likely a small amount, you don’t want to personally owe the IRS if you distribute this money.
Missouri’s intestate succession.
When there is no valid will, Missouri’s intestacy statute (§ 474.010) dictates who inherits and in what shares — after valid claims made against the estate are paid. Here is what the laws state in Missouri:
Spouse, no descendants
The surviving spouse inherits the entire intestate estate.
Spouse + shared children
Where all children are also the spouse’s children, the spouse receives the first $20,000 plus one-half of the balance; the children split the rest equally.
Spouse + non-shared children
If one or more children are not also the spouse’s children, the spouse takes the first $20,000, and then shares equally one-half of the remaining estate and the children split the other half equally.
No spouse
The estate passes to the decedent’s children or their descendants in equal parts; if none, to parents, siblings, or their descendants; and outward to more distant kin from there.
Missouri also gives a surviving spouse and unmarried minor children certain exempt property and allowances, and a survivor generally must outlive the decedent by 120 hours to inherit. Real estate and contested shares can complicate the picture quickly.
When to talk to an attorney first.
Many small estates can be handled with the affidavit alone. However, it is always important to at least talk to an attorney, and we, along with many other firms will offer a brief consultation. Even a small estate can cause significant problems for you as the executor. A short conversation before you file anything is worth it if any of these apply:
- You’re unsure whether the estate is actually under the $15,000 threshold
- The estate includes real estate you may need to sell — title companies often want more than the affidavit
- There are outstanding debts, medical bills, or potential creditor claims
- There’s any disagreement among heirs about who receives what
- There is no will, and intestate shares aren’t obvious
- You’ve already distributed assets and aren’t sure you did it correctly
Remember that most things in the legal world are fixable, but a simple error to avoid spending a few dollars up front can cost you or your estate thousands to fix something that is preventable. Yes, you can handle legal matters yourself, but a simple mistake can be very costly, and if your mistake costs your estate money, the other beneficiaries will likely seek that cost from your share, or from your pocket.
Get the fillable Missouri small estate affidavit.
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This page provides general information about Missouri law and is not legal advice. Every estate is different, and the small estate affidavit may not be appropriate for your situation. Downloading this form does not create an attorney-client relationship between you and Haake Law Group or Derek Haake. The form provided is a standard Missouri court form that Haake Law Group has made fillable for convenience; the firm did not draft the underlying form. This is attorney advertising.