Tag Archives: Affidavit

Small Estate Affidavits; Or, How to Know If Someone Has Authority to Act on Behalf of an Estate – Part II

scales-of-justice  In my previous blog post, I addressed how you know whether someone has authority to act on behalf of an estate. I explained that letters testamentary, provided they are recently certified, furnish proof that the person in question has been appointed executor or personal representative of the estate. What if the person presents not letters testamentary but an affidavit?

Suppose for example that you are a bank clerk in Twin Falls, Idaho. A woman comes in to your branch and shows you an affidavit saying that a bank customer who was a resident of Elko, Nevada has died and she is entitled to receive the whole of the customer’s estate. The account has $9,000 in it and there is no “pay on death” beneficiary. The affidavit is supported by a will purportedly signed by the customer and leaves everything to the woman in question, who is a cousin of the decedent. It also identifies a vehicle of the decedent. The affidavit purports to be made pursuant to NRS 146.080.

What should the bank clerk do? How does the clerk know if the affidavit is true? Should the clerk get more documentation? Can the clerk demand a court order instead of the affidavit?

NRS 146.080 allows a beneficiary of a will or an heir of an intestate estate to obtain the decedent’s property if the decedent left less than $20,000 (excluding sums due for service in the armed forces) and no real property in decedent’s individual name. An affidavit can be used if at least forty days have elapsed since the decedent’s death. It must identify the affiant (the person making the affidavit) by name and address and state that the affiant is entitled to the decedent’s property. The affidavit has to state, among other things, that there is no petition for the appointment of a personal representative pending in any jurisdiction nor has any such petition been granted, and that all of decedent’s debts have been paid or provided for. It must describe the personal property claimed. It must state that the affiant has given written notice by personal service or certified mail, identifying the affiant’s claim and describing the property to all persons whose claim is equal or greater than affiant’s, and that fourteen days have elapsed since such notice was given. Additional requirements are listed in the statute.

Effective October 1, 2015, the small estate affidavit rules have been revised to allow a surviving spouse to obtain property up to a value of $100,000, and any other qualified person to receive property up to $25,000 by this method. The legislative changes also provide that the affidavit must state that the affiant has no knowledge of any existing claims for personal injury or tort damages against the decedent. Finally, the value of decedent’s motor vehicles is now to be excluded when calculating the value of the estate. Note, however, that the DMV will still need to see the affidavit and the affidavit must identify any and all vehicles that the affiant wishes to transfer.

Back to our example: if the affidavit is properly completed and the bank clerk has no reason to believe anything is amiss, it is proper to give the money to the person presenting the affidavit. The bank fulfills its obligation to the heirs or to the estate if it relies in good faith on the affidavit. That said, very often banks and brokerage firms outside of Nevada are not familiar with this provision of Nevada law and do in fact insist that a court order be obtained. If the bank refuses to turn over the account, the beneficiary may have to file a petition in court to set aside the account to herself.

If you are presented with a question about whether a small estate affidavit is valid under Nevada law, you should consult with a Nevada probate attorney before taking action.

Nevada Probate for Dummies®, Part One

“For a man may do his work with wisdom, knowledge and skill, and then he must leave all he owns to someone who has not worked for it. This too is meaningless and a great misfortune.” –Ecclesiastes 2:21

What happens to your belongings when you die? In Nevada, the answer largely depends on what preparation and planning you do while you are alive. It also depends on the size of your estate. For those who do not create a trust during their lifetime, or for those who do not put all their property into their trust, a court may oversee the process of transferring assets from the deceased to those who are entitled to inherit.

Nevada has four levels of probate or estate administration.

  1. Affidavit. If the deceased owned $20,000 or less, had no real property and no debts, the heirs can present a simple affidavit with a death certificate to a bank, DMV or the like in order to transfer title. In this case there is no need to file anything in court.
  2. Set Aside. If the deceased owned $100,000 or less, the heirs can petition the district court to set aside the estate to the heirs or beneficiaries without any court supervised administration. This procedure is relatively simple and economical.
  3. Summary Administration. If the deceased owned between $100,000.01 and $200,000, the will must be lodged with the court and the person designated the personal representative or executor must conduct a formal, court supervised procedure to administer the estate, pay the debts and distribute the remaining assets to the heirs. If the deceased did not have a will, a relative or other interested person may petition to administer the estate. The assets would go to the relatives of the deceased in accordance with Nevada’s laws of intestate succession.
  4. General Administration. If the deceased owned more than $200,000, the estate must be administered under court supervision, as in a summary administration. The only difference between the two is that in a general administration, there is a longer period of time in which creditors have to file claims against the estate.

Sharon Parker

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