Probate for Small MS Estates

Requirements

To use the small estate process, the following conditions must be true:

• The estate's assets have a gross value <$75K in total (prior to July 1, 2020 the limit was $50K)
• At least 30 days have passed since the death
• No petition has already been made to the court to officially appoint a personal representative

In determining the value of the estate, you should value assets as of the date of death, and ignore any unsecured debts. Do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

To use the small estate process:

1. Prepare a Small Estate Affidavit, have it notarized, and attach a copy of the death certificate and the will (if any)
2. Obtain possession of estate assets by presenting the affidavit to current custodians (real estate cannot be transferred via small estate affidavit)
3. Settle the estate in the normal way (pay debts, distribute remaining assets)
4. Submit an Affidavit Form 78-014 to the DMV for any vehicles (note that the document title is misleading, and refers to any estate where a will has not been probated).

Requirements

You can use a Muniment of Title if:

• A valid will exists that devises (i.e., assigns) real property to someone
• The value of any personal property in the estate is <$75,000 (prior to July 1, 2021 the limit was $10K)
• All known estate debts have been resolved

In determining the value of personal property (i.e., everything except real estate), you should value assets as of the date of death. Do not include exempt property or any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

To transfer real estate via a Muniment of Title:

1. Submit to the court a Petition for Muniment of Title (see below)
2. The court will issue an Order of Muniment of Title
3. Record the Muniment of Title with the county deeds office

Petition

A petition for Muniment of Title must:

• State the name, residence, and date of death of the decedent
• State your interest (e.g., named in the will as personal representative, heir, etc.)
• State that the value of any personal property in the estate is <$10,000 (not including exempt property)
• State that all estate debts have been paid, including any estate and income taxes
• List the names and addresses of the beneficiaries named in the will, and have each such heir sign the petition (disabled heirs may have their legal guardians or one of their parents sign for them)
• If a surviving spouse is not named as a beneficiary in the will, then he or she must also sign the petition
• As of 2021, it may be possible for a person named as executor in the will to sign on behalf of everyone above (check with the local court)
• Provide the legal description of the real property being claimed, and who is rightfully entitled to it according to the will (by percentage)
• Request that the court issue an order of Muniment of Title for the real property

Attach a certified death certificate, a copy of the will, and have every signature notarized.