Introduction

When handling the estate of a loved one, particularly after closing out their bank accounts and receiving a significant amount of money, one may wonder if certain assets, such as a house and other property, still require going through a regular probate court. This article aims to clarify the role of a non-probate affidavit and provide guidance on the conditions and processes involved.

What is a Non-Probate Affidavit?

A non-probate affidavit is a document used in small estate procedures that allows the distribution of an individual's property without the need for formal probate. It is typically signed before a notary public to recognize the distribution of assets meeting specific criteria.

The purpose of a non-probate affidavit is to:

Facilitate the distribution of the decedent's property to rightful beneficiaries Avoid the lengthy and potentially costly probate process Ensure compliance with statutory requirements for small estates

Conditions for Non-Probate Distribution

In many states, certain conditions must be met for property to be distributed via a non-probate affidavit. For example, in Colorado, the key conditions include:

The value of the decedent's property, excluding liens and encumbrances, must not exceed twice the amount set in the state law (as adjusted annually) At least ten days must have passed since the decedent's death No probate proceedings have been initiated or granted in any jurisdiction Each beneficiary must be entitled to the property as stated in the affidavit

For the state of Colorado in 2023, the threshold amount is $80,000, meaning the total value of the property, less any liens or encumbrances, must not exceed this amount.

Handling Your Mother’s Estate

The handling of your mother's estate, including her house and other property, depends on various factors such as the ownership form of the property and the existence of a will.

Real Property – The House

For real property like your mother’s house, several factors must be considered:

Joint Tenancy with Right of Survivorship (JTWROS): If your mother was the only tenant or owned the property as tenants in common, probate may be necessary. However, if the deed includes you as a JTWROS tenant, your mother's share would pass to you automatically under the law, bypassing probate. Merely recording her death certificate will perfect your ownership. Single Tenancy or Tenancy in Common: In such cases, if your mother are the only tenants, or if they owned the property as tenants in common, probate would be required to distribute the property according to your mother's will or the laws of intestacy.

Personal Property – Other Assets

As for other personal property, such as the contents within the house, these can also be distributed via the small estates procedure if they meet the criteria.

If the items meet the conditions for a small estate, you can use the non-probate affidavit to handle the distribution of these assets without formal probate. This includes:

Personal belongings Bank accounts included in the small estate Valuables and other personal effects

Consulting with a Legal Professional

No matter the specific situation, it is crucial to consult with an estates attorney in your locality. Legal advice can provide personalized guidance and ensure that all necessary steps are taken to properly distribute the estate.

Conclusion

Understanding the role of a non-probate affidavit in estate planning can greatly simplify the process of distributing an individual's property. However, it is important to review the specific conditions and requirements of your state, and seek professional consultation to ensure compliance with probate and estate laws.