Small Estate Administration by Affidavit

1. Small Estate Administration by Affidavit • Problem:Avoiding both cost and burden on court of administering small estates • Estates with small net probate assets • Large estates with small net residual probate assets • Typically bank accounts, small investments, etc.

2. Small Estate Administration by Affidavit • Solution: Transfer property via Affidavit rather than Letters Testamentary/Letters of Administration • Adopted in some form by most states and by the UPC • Enacted by statute in Kansas, Missouri, and Oklahoma

3. Kansas: K.S.A. § 59-1507a • Applies primarily to pension-like benefits, public or private, due to decedent • Applies to benefits less than $5,000 • Affidavit is required for transfer • Content of the affidavit is specified by statute, but its form is not • Beneficiaries limited to Spouse and immediate family (children and grandchildren, parents, and siblings)

4. Kansas: K.S.A. § 59-1507b • Testate or intestate • Applies to Personal Property only • Applies to estates with net probate assets less than $40,000 • Affidavit is required for transfer of property • Content of the affidavit is specified by statute, but its form is not • Statute refers to form published by the Kansas Judicial Council as “sufficient”

5. Kansas: K.S.A. § 59-1507b • Affiant may be the Personal Representative (testate) or any legitimate successor (intestate) • All transfers of Personal Property to successors “shall be deemed” transfers to the Personal Representative • Per statute: Upon receipt of affidavit, any entity holding assets shall release them • Upon delivery of assets, holding entity is discharged and released from further claims

6. Missouri:§ 473.097, RSMo • Applies to Real or Personal Property • Applies to estates with net probate assets less than $40,000 • Involves some (minimal) supervision by the court • Affidavit is required for transfer of property • Affidavit must list all probate assets • Bond is required of affiant unless waived by the court

7. Missouri:§ 473.097, RSMo • Notice to Creditors must be published if the net probate assets exceed $15,000 • Affidavit must be filed with the court clerk, who will then issue copies • Content of the affidavit is specified by statute, but its form is not • Each county publishes its own preferred form

8. Oklahoma: 58 O.S. § 393 • Similar to Kansas • Applies to estates with net probate assets less than $20,000 • Affidavit is required for transfer of property • Content of the affidavit is specified by statute, but its form is not • Per statute: Upon receipt of affidavit, “any person” holding assets shall release them • Upon delivery of assets, “the person” is discharged and released from further claims

9. How does it work in the real world? • Some banks and investment brokers have appropriate affidavit forms on the shelf, but many do not • Some banks (e.g. Bank of America) are totally unaware of the procedure and will refuse to release funds, even when presented with a proper affidavit and a printed copy of the statute ◦“We require Letters Testamentary before we'll release anything.”

10. How does it work in the real world? • ◦“That's just something you printed off the Internet.” [Referring to a true copy of the statute printed directly from the official State of Oklahoma web site.] • ◦“We're a federally-chartered bank. We don't have to comply with state law.” • “You can make something fool proof, but you can't make it damn-fool proof.” ~ Larry Maisel