fbpx

If someone dies and their combined assets qualify as a small estate, an heir can use the Virginia Small Estate Affidavit to administer the estate (administering someone’s estate means distributing their assets as they directed through their estate plan, or distributing their assets according to state law if they do not have an estate plan). This tool avoids probate and administers the estate in a more straightforward manner. To see if your estate or someone else’s could be administered with this tool, read the following FAQs about the Virginia Small Estate Affidavit:

(Related: For an overview of common estate planning and estate administration terms download our Virginia Estate Planning Glossary.)

What Is the Virginia Small Estate Affidavit?

The Virginia Small Estate Affidavit is a sworn statement that a direct heir can take to the deceased’s bank, to their financial institution, to a DMV, or to other institutions that may hold the deceased’s assets. It states the deceased’s estate is a small estate according to Virginia law, and that the heir has the right to retrieve funds or a particular asset.

To give you an example of how this works, let’s say your mother passes away. She was single, living in a nursing home, and only owned one small checking account that holds $10K with a BB&T bank. You and your two siblings are her direct, equal, meaning you are related to her in a way that entitles you to inherit from her according to state laws. Instead of going through the probate process the three of you could create and sign a Virginia Small Estate Affidavit swearing that you meet the qualifications of heirs and give that (along with your mother’s death certificate) to BB&T to obtain access to her account.  This will almost certainly be far less expensive and far quicker than the traditional probate process.

What is a Small Estate According to Virginia Law?

In Virginia, if the combined total of your personal property is under $50k when you pass, your estate is considered a small estate.

Will It Work for Me or My Loved One’s Estate?

If you are wondering if the Virginia Small Estate Affidavit could work for your estate when you pass, or if you are an heir who thinks you may be able to administer your loved one’s estate in this way, these are the requirements:

  • The person using a Virginia Small Estate Affidavit must be an heir at law according to Virginia law. If there is more than one heir, all the heirs must agree and sign the Virginia Small Estate Affidavit for funds to be released to one person. [Click here to see Virginia’s order of heirs.]
  • Heirs must wait 60 days after death before presenting this form.
  • The estate must contain less than $50K in personal property.
  • A death certificate must be presented with the Virginia Small Estate Affidavit.

Where Can I Get the Form?

There is no official Virginia Small Estate Affidavit form. Some template forms are available online, but we encourage people to work with an attorney to ensure their Affidavit meets all of the requirements and does not create unnecessary liability.

How Do I File a Virginia Small Estate Affidavit?

A small estate does not go through probate, and therefore, this form does not need to be filed with the court system. It must be presented to whoever is in possession of the asset you are trying to obtain—typically a financial institution, but it could be someplace else, such as a DMV when you are taking possession of a car title.

 

If you are planning for your own estate, here are some more articles you may find useful: https://www.jehlaw.net/category/estate-planning/

If you are administering a loved one’s estate, here are some more articles you may find useful: https://www.jehlaw.net/category/estate-administration/

 

Joshua E. Hummer, Esq. is a licensed attorney who has been admitted in both Virginia and West Virginia. He is a graduate of the University of Virginia and has been practicing for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law.