The Use of Small Estate Affidavits in Arizona to Avoid Probate

By Donald Loose

When a person dies and leaves property and assets titled in his or her name, the surviving spouse or heirs must collect the property and assets. Normally, this process involves probating the deceased person’s estate, which is a relatively expensive and time-consuming court procedure.  Fortunately, in some cases, it’s possible to avoid probate entirely by using affidavits (sworn statements) to collect the decedent’s property and assets.

Up to $5,000 in wages or salary due the deceased person may be collected by his or her spouse by furnishing to the decedent’s employer an affidavit stating that the person making the affidavit is the surviving spouse or is authorized to act on behalf of the spouse, and that no application for the appointment of a personal representative is pending or has been granted or, if granted, 1) the personal representative has been discharged, or 2) more than one year has elapsed since the filing of a closing statement. This affidavit may be used any time after the decedent’s death, and there is no waiting period.

A separate affidavit may be used to collect the decedent’s personal property valued up to $75,000.  Personal property includes money in a bank account, stocks, and vehicles.  Unlike the affidavit to collect wages, a surviving spouse or heir must wait 30 days after the death to use this affidavit. The affidavit must contain certain statements, including that the value of all personal property in the decedent’s estate does not exceed $75,000, and the person presenting the affidavit is entitled to the property. All of the decedent’s property, wherever located, must be included in the valuation determination, less liens and encumbrances.

A surviving spouse or heirs may also use an affidavit to acquire title to real estate, but must wait six months to do so. Once the waiting period is over, the surviving spouse or heirs may file in the superior court in the county in which the decedent was domiciled at the time of his death, an affidavit describing the real property and the interest of the decedent in the property. The affidavit must contain specific statements required by the statute, and must have certain documents attached to it. The real property affidavit does have certain limitations, including that the value of all real property located in Arizona, less all liens and encumbrances, cannot exceed $100,000.

None of the small estate affidavits described above may be used if an application for the appointment of a personal representative is pending. If a personal representative has been 
appointed, a small estate affidavit may not be used unless the personal representative has been discharged or more than a year has passed since the filing of a closing statement. There are other legal requirements applicable to the use of these affidavits, but the basic ones have been covered.