Collections by Affidavit

/ April 6, 2011

Probate, among other things, is intended “to promote a speedy and efficient system for liquidating the Estate of the Decedent and making distributions to his successors.” A traditional probate administration is neither “speedy” or “efficient” for a small estate; therefore, Minnesota law provides an alternative if the net value of the Decedent’s probate assets do not exceed $50,000.

A traditional probate administration may be avoided altogether if the net value of the Decedent’s probate assets are $50,000 or less.  The amount of the Decedent’s non-probate assets is irrelevant. A process called Collection of Personal Property by Affidavit may be utilized.  Here, the Decedent’s assets may be collected by the person entitled to them by providing the appropriate affidavit to whomever has possession of the property.

Collectible Assets

The affidavit may be used to collect a variety of assets, including:

  • Tangible personal property;
  • Bank accounts;
  • Mutual funds;
  • Stocks and bonds; and
  • Other securities and debts owed to the Decedent.

The affidavit may not be used to collect real property.  The transfer of Decedent’s real property requires a traditional probate administration and the appointment of a personal representative. The affidavit may be used to transfer title to a motor vehicle; however, the Minnesota Department of Motor Vehicles has its own form for transferring title of a motor vehicle that may be easier to use.

Requirements for Use of the Affidavit

In Minnesota, the following must be met in order to utilize the collection by affidavit process:

  • Decedent’s probate assets, less debts, must not exceed $50,000 as of the date of death;
  • Thirty (30) days must have lapsed since the Decedent’s death;
  • There must not be an application to open a probate proceeding; and
  • The claiming individual must be entitled to the property.

An individual entitled to the property is one who takes based on intestate succession or devise; for example, a surviving spouse. A creditor, with one exception, cannot collect under the affidavit process. The exception permits a state or county to collect if there is a medical assistance claim.

Asset Collection

If these requirements are met, the affidavit and a certified copy of the Decedent’s death certificate are presented to the property possessor. The possessor is then under an obligation to turn over the assets.  Once turned over, the former property possessor is relieved from liability with respect to that property.

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