The probate process can take a very long time. Imagine having an option to speed up that process or potentially avoid it completely.
Under Nebraska law, there are two statutes that allow an individual to collect a deceased person’s property without requiring the probate. These statutes allow for a person to sign a small estate affidavit to transfer property. The key questions to ask are:
1. What type of asset is it – personal property or real property?
2. How is the asset titled?
3. How much is the asset worth?
Type of Asset. Real property is real estate; personal property is everything else.
Title of the Asset. In order for a small estate affidavit to be used, the asset must be in the deceased person’s name only.
Value. Under Nebraska law, personal property worth less than $50,000, in total, and real property worth less than $50,000 can be transferred without the necessity of filing in court. Effective July 21, 2022, the allowable amount increases to $100,000 for personal property.
For the transfer of personal property, 30 days after the deceased person passes away, the individuals entitled to receive the property can sign an affidavit to receive the assets. The value can be reduced by any liens or encumbrances on the personal property to comply with the value requirement.
For the transfer of real property, 30 days after the deceased person passes away, an affidavit, signed by all the individuals entitled to a share of the real property, can be filed with the Register of Deeds to transfer title to the successor owners. The value of the property is based on the value of the deceased person’s interest, which is determined from the value of the property shown on the tax assessment rolls for the year in which the deceased person died, less real estate taxes and interest due at the time of death. If the deceased person died with a Will, the Will must be attached to the affidavit.
It is important to make sure there is no inheritance tax owed on the assets that are being transferred. In addition, it is important to make sure all individuals who are entitled to a share of the deceased person’s assets are included. Failure to do so could complicate things later on regarding the rightful title owner. The affidavits are signed under penalty of perjury and cannot be used if a probate proceeding was previously opened.
Small estate affidavits can be an efficient way to transfer assets without the court system when they apply. For example, small estate affidavits are a great way to transfer an asset to a trust after the owner has died, and previously forgot to transfer the asset to the trust before they died. Consult with an experienced probate attorney to determine if a small estate affidavit is appropriate for your situation.