Small estate affidavit vs probate: which one applies to this estate
Probate is the court process that decides who gets a dead person's property and pays their debts along the way. A small estate affidavit is the statutory exception: below a dollar limit, the heirs swear to the facts and collect the property themselves. Which one you need is decided by four things, in this order.
1. The dollar limit
Every state sets one — from roughly $30,000 (Michigan) to $208,850 (California) — and tests it against the property in the person's sole name that has no beneficiary. Joint accounts, payable-on-death accounts, life insurance and trust assets are outside the estate and outside the test. Florida is the exception: instead of a dollar limit it asks whether the property exceeds the funeral bill and the last 60 days of medical bills.
2. Real estate
Most states' affidavits move only personal property. A house in the person's sole name means probate — or a state-specific route: Texas lets the homestead pass by affidavit to a spouse or minor children; Arizona and California have separate small-value real property affidavits filed with the court; Missouri allows it if the whole estate stays under $40,000.
3. A will
In most states the affidavit works with or without a will. Texas is the notable exception: with a will, the shortcut is probating it as a muniment of title instead. Illinois and New York require the original will to be filed with the clerk either way.
4. Whether anyone has already gone to court
If a probate case is open, or a personal representative has been appointed anywhere, the affidavit is off the table — assets go through that case.
What each one costs and takes
| Small estate affidavit | $0–$400 in fees, 0–45 day wait, then days to a few weeks. No lawyer required. |
|---|---|
| Summary / informal probate | $200–$500 in fees, 1–4 months, often without a lawyer. Available in most states for estates somewhat above the affidavit limit. |
| Formal probate | $300–$1,500 in fees plus attorney fees of 2–5% of the estate, 6–18 months. |
When probate is the better choice even if you qualify
When heirs disagree, when a creditor is threatening suit, or when an asset holder simply refuses affidavits — a court-issued document ends the argument. And when the estate is close to the limit, remember the affidavit is void if the estate turns out to be over it.
Common questions
Can I use a small estate affidavit if probate has already started?
No. Once a case is open or a representative appointed, assets are collected through the case.
Is a small estate affidavit faster than probate?
Almost always: days to a few weeks after the waiting period, versus months. The exceptions are court-filing states with a backlog, where the affidavit approval can take 2–4 weeks.
What if the estate is just over the limit?
Most states have a summary or informal probate for estates above the affidavit limit but still modest. It is more paperwork than the affidavit, less than formal probate, and usually still possible without a lawyer.
Check whether your estate qualifies · Limits by state · All guides