collection or transfer of personal property by affidavit

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2010 California Code Probate Code Chapter 3. Affidavit Procedure For Collection Or Transfer Of Personal Property

Disclaimer: These codes may not be the most recent version. California may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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Affidavit For Collection Of Personal Property Of Decedent (For Decedents Dying On Or After Jan. 1, 2012)

Declaración jurada para recolectar biened muebles del difunto (para personas que fallecieron a partir del 1 de enero de 2012), bản khai hữu thế yêu cầu thu thập tài sản cá nhân của người đã mất (dùng cho các trường hợp người đã mất qua đời vào hoặc sau ng.

North Carolina Probate Solutions

Probate and real estate services.

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• Feb 4, 2023

6 facts about the Affidavit for Collection of Personal Property in NC

Updated: Nov 29, 2023

Probate is the legal process whereby the assets of a deceased person are distributed to their beneficiaries or heirs after the decedent's death. To settle an estate, in North Carolina the county probate court appoints a personal representative to manage the estate's assets and liabilities, if the decedent did not appoint an executor in his will to do so.

When settling an estate, residents of North Carolina have options outside the traditional probate process. The Affidavit for Collection of Personal Property of the Decedent (Collection by Affidavit) is one simplified procedure applicable solely to small estates .

[Need help with probate? Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here. ]

What is The Affidavit for Collection of Personal Property?

According to the North Carolina statute § 28A-25-1, a heir can settle a deceased person's estate without going through probate by applying for the Affidavit for Collection of Personal Property of the Decedent ( form AOC-E-203B ).

The affidavit for collecting personal property is a two-page document, and the filing fee is $120.

Whether the deceased person passes away without a will (intestate) or with a will (testate), a Collection by Affidavit is an option for small estates. and may save one time and money when compared to the traditional probate process.

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Who May Serve As The Affiant?

The decedent's heir, beneficiary, creditor, or executor, may serve as the affiant ( a person who swears to an affidavit.) or person who makes the affidavit.

When a decedent does not leave behind a sizable amount of property, the administrator and heirs might save time and money by applying for the affidavit.

If the court grants the petition, the affiant will be permitted to collect and manage the inheritance. Debts must be paid, and assets must be distributed as directed in the will (or the North Carolina Intestate Succession law if the deceased left no will).

After all estate obligations have been paid, and all estate property has been distributed, the affiant must submit a closing affidavit with the Clerk of Superior Court.

The form is The Affidavit of Collection, Disbursement, and Distribution ( Form AOC-E-204 ). Complete details of the estate's earnings, debt payments, and disbursements can be seen in the closing affidavit.

Requirements for qualifying for Affidavit for Collection of Personal Property.

The value of the deceased person's personal property, less any liens, must be $20,000 or less for the estate to be eligible for this process if the decedent was unmarried. The same applies if the affiant is not a spouse.

However, as the sole heir of the deceased, the surviving spouse may apply for the Affidavit. In this instance, the value of the decedent's personal property may not be more than $30,000 after deducting any encumbrances and a $60,000 spousal allowance.

[To learn more on how a small estate affidavit can help you skip probate I suggest you read this article: Small Estates: How a Small Estate Affidavit Can Help You Skip Probate Court .]

All tangible assets, such as furniture, jewelry, automobiles, etc., are included in this valuation. Stocks, bonds, and bank accounts are examples of intangible assets that are also considered part of the decedent's personal property.

Retirement accounts and life insurance policies with beneficiary labels are not included in the computation to determine whether or not an estate meets the legal definition of a small estate.

Land, houses, buildings, and mineral rights are examples of real property that fall outside this definition's scope.

[To learn more about which assets have to and not have to go through probate read the article: Probate Assets: What You Need To Know. ]

Conditions for filing out the Affidavit for Collection of Personal Property in North Carolina.

The provisions of North Carolina Statute 28A-25-1 directs the Affidavit for Collection of Personal Property. To ensure a successful procedure, the following requirements must be met:

There must have been at least 30 days between the date of death and the beginning of the application process.

The application must include Death Certificate verifying the 30-day waiting period

No pending application or approval must be granted for a personal representative's appointment.

The application must include a detailed inventory of the deceased estate. However, if the deceased's real property is to be sold within two years of death, the small estate criteria may be waived. [To learn what must be included in the inventory list read the article: How To Create a Probate Inventory List.]

A certified copy of the will must be attached to the application if the deceased left a valid will.

All the beneficiaries' and heirs' full names and current addresses must be entered correctly on form AOC-E-203B .

The form must be completed in black ink.

A notary public, Clerk of the Superior Court, or Assistant CSC must attest to the affiant's signature and the authenticity of the documents.

An official seal must be affixed by either a court official or a notary.

The county of the deceased's residence must be the location of filing the affidavit.

A Resident Process Agent document AOC-E-500 , must be provided if you are not a resident of North Carolina. This form must be signed by you and an resident process agent who you appoint, and must be notarized. This designated individual will assist with handling court matters such as handling paperwork and making sure you receive the papers for your records. [To learn more about the role of the resident process agent I suggest you read: What Does A Resident Process Agent Do In Probate In NC. ]

Benefits of applying for the Affidavit for Collection of Personal Property

Compared to a full-fledged probate administration, the Affidavit for Collection of Personal Property of Decedent process usually saves money and time. In contrast to probate, there is no mandatory waiting period or notice to creditors.

Thus, if an estate qualifies as "small, "it is unnecessary to go through the probate process, which can take months or even years. Instead, fill out the Affidavit for Collection of Personal Property and have it notarized. The clerk of superior courts will process the file and send out copies to all entitled parties.

Certified copies of the affidavit, along with the death certificate will be sent out to any party/person who has possession of the decedent's property. Once this is done the party is now obligated by law to transfer the property to the affiant.

North Carolina Affidavit for Collection of Personal Property

Using a North Carolina Affidavit for Collection of Personal Property, a deceased person's heirs can claim their inheritance without going through the lengthy and expensive probate process. However, this Affidavit is useful only if the petitioner or affiant has a valid claim to the estate.

To qualify for the affidavit, the net worth of the decedent's estate must be at most $20,000 or $30,000 if the surviving spouse is the only heir. [To learn more about the surviving spouse rights read: Surviving Spouses Property Rights in North Carolina .]

Despite how straightforward the procedure may appear, it demands great attention to detail. Because of this legal counsel can be invaluable if you need help with the affidavit process or the closure of an estate.

Hello, I'm Denise Davis. The owner of North Carolina Probate Solutions and a licensed realtor with EXP Realty in Greenville NC. I chose to specialize in probate because I am also a registered nurse who have worked with hospice and palliative care patients and families and understand the burden probate can be while still grieving.

Trying to deal with probate and the lost of a loved one can feel like a tremendous load to carry.

I know probate can be both emotional and frustrating and can add additional stress to an already stressful time in life.

I understand the probate process and what is required to bring the process to completion. If there is something that I do not know, I work with experienced attorneys, contractors, accountants, inspectors and many other professionals who I can turn to, to get you the answers you need.

If you need to sell your loved ones home to pay off debt or to distribute funds to the heirs and/or beneficiaries lets talk to see how I can help you. I provide options, so whether it's listing your home on the market or getting you a fast cash offer I can help you.

If you find yourself having questions or needing guidance with probate matters, please feel free to reach out to me!

Denise Harper Davis

Certified Probate Real Estate Specialist

Licensed Realtor

* NOTE: North Carolina Probate Solutions and the author of this article is not a licensed attorney or CPA. This post should not be considered legal or tax advice. Always consult an estate attorney or tax professional when needing legal answers and legal advice.

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NC Probate: Affidavit for Collection of Personal Property

Are you handling probate and estate settlement for a family member or loved one? Probate is the process of settling a deceased (decedent) person’s estate and distributing their property to heirs. This process takes place under the supervision of the county probate court and involves the appointment of a personal representative to take care of the estate’s affairs.

As the representative, you would typically pay estate debts, fees, and taxes on behalf of the decedent before distributing the decedent’s property according to the will or the North Carolina Intestate Succession Act .

The Affidavit for Collection of Personal Property of Decedent (Collection by Affidavit) ( Form AOC-E-203B ), is one of these expedited processes. In this article, we discuss:

• The requirements of a small estate
• The Collection by Affidavit process
• The benefits of filing a Collection by Affidavit

Do you need a probate lawyer to help you file a Collection by Affidavit? At Carolina Family Estate Planning in Cary, North Carolina, we’re here to help. Contact us today to schedule a needs assessment call.

Does the Estate Qualify as Small? 

A Collection by Affidavit is available for a small estate whether the decedent dies intestate (without a will) or testate (with a will). The affiant, or person who makes the affidavit, can be the public administrator or the decedent’s heir, creditor, executor, or devisee.

If The Decedent Is Not Married

If the decedent is not married, the estate qualifies for this proceeding if the value of the decedent’s personal property, minus liens and encumbrances, is no more than $20,000. This value includes all movable assets—for example, vehicles, jewelry, and livestock. Intangible assets, such as stocks, bonds, and bank accounts, also form part of the decedent’s personal property.

If The Decedent Is Married

Suppose the decedent is married, and someone other than the surviving spouse applies for the affidavit. In that case, the estate qualifies if the decedent’s personal property value—minus liens, encumbrances, and spousal allowance ($60,000)—is no more than $20,000.

The surviving spouse may apply for a Collection by Affidavit as the decedent’s sole heir. In this case, the value of the decedent’s personal property, minus liens, encumbrances, and a spousal allowance of $60,000, must not exceed $30,000.

Additional Notes on Calculating Estate Value

When determining if an estate legally qualifies as small, the following factors do not form part of the calculation:

• Life insurance policies and retirement accounts with beneficiary designations
• The value of the decedent’s real property

Real property includes immovable assets, such as land, buildings, and mineral interests. If real property is part of the estate and goes through liquidation to pay debts, the court will follow a formal proceeding involving notice to the creditors.

The encumbrances that don’t form part of the estate’s value include expenses payable from the estate—for example, attorney fees, administration costs, and funeral bills. Contact one of our probate attorneys at Carolina Family Estate Planning today to schedule a discovery meeting to determine if an estate qualifies for this expedited process.

Collection by Affidavit: The Process

At least 30 days must pass from the date of the decedent’s death before the Collection by Affidavit process can start.

Once the court has approved the application, it will authorize the affiant to collect and administer the estate. The affiant must pay debts, and distributions must occur according to the will (or the intestate succession law, if the decedent dies without a will).

After paying the estate debts and distributing the estate property, the affiant must file a closing affidavit with the Clerk of Superior Court using the Affidavit of Collection, Disbursement, and Distribution ( Form AOC-E-204 ). This closing affidavit shows all estate income, debt payments, and distributions.

Carolina Family Estate Planning: Your Probate Attorneys in Cary, North Carolina 

The Collection by Affidavit process is significantly quicker and more affordable than a formal probate proceeding. This small estate administration process doesn’t have the same waiting period and creditor notice requirements as the probate process.

Do you want to file a Collection by Affidavit? At Carolina Family Estate Planning, our probate attorneys can help you determine if such a small estate administration is possible. We will also help you navigate the application process, ensuring that you avoid potential pitfalls. Call us in Cary, North Carolina, at 919-443-3035 today or schedule a needs assessment call with a member of our friendly, professional legal team.

Copyright © 2022. Carolina Family Estate Planning. All rights reserved.

The information in this blog post (post) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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Affidavit for Collection of Personal Property

Templates and forms.

Use the RTF (word processing format) if you need to make changes to the form before filling it out, such as adding additional room for legal description, additional names of signatories, or additional details. Be aware that changing the language on some forms may affect their validity and enforceability.

Disclaimer!

These forms have been adapted from California statutes and highly-regarded practice guides to fit common situations. The law librarians have attempted to provide instructions, definitions, and examples to assist non-lawyers in understanding the purpose of the form, and what type of information to include when filling it out.

However, only lawyers (attorneys) can advise you of the correct forms for your particular situation, and what specific information to include on your forms.

It is your responsibility to determine whether this form is suited to your needs. If you have questions about what form to use, or how to fill them out, visit your local law library to do your own legal research, or consult a lawyer.

This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.

Transferring the Deceased's Property Without Going to Court

• Wills & Estate Planning

Here, learn about ways a deceased person's property may pass on to their heirs without the need for a formal court proceeding, like:

• small estate affidavits,
• affidavits of heirship,
• statements of inheritance for mobile homes,
• applications to determine heirship, and
• transfer on death deeds (which must be prepared before you die).

Can you transfer ownership of the deceased's property without going through the formal probate process?

Some of the deceased's ("decedent's") property may pass without the need for a formal probate process. Methods include: 

• small estate affidavits , 
• affidavits of heirship , 
• statements of inheritance for mobile homes , 
• applications to determine heirship , and 
• transfer on death deeds .

When can you use a small estate affidavit?

Chapter 205 of the Texas Estates Code lets the heirs at law (distributees) of someone who died intestate (that is, died without a will) file a small estate affidavit with the court as an alternative to going through the probate process.

For the distributees to file the small estate affidavit, the following must be true about the estate:

• No petition for the appointment of a personal representative is pending or has been granted.
• Thirty days have passed since the decedent has died.
• The value of the assets of the decedent’s estate, excluding the value of the decedent’s homestead and exempt property, is less than or equal to $75,000.

How do you prepare a small estate affidavit?

It must include a list of all known estate assets and liabilities, including which assets are exempt, and contain the relevant family history that shows each person’s right as an estate heir to receive estate assets.

The small estate affidavit must be sworn to by two disinterested witnesses (that is, people over age 18 who are  not  heirs to the estate). Each distributee of the estate who has legal capacity must sign as well.

What real property can be transferred with a small estate affidavit?

The small estate affidavit will only transfer title of the deceased person's homestead— and only to a surviving spouse or minor child. Any other real property owned by the decedent cannot be transferred by using or filing a small estate affidavit.

To transfer the decedent’s homestead to the distributees, the real property— and a proper legal description of it— must be listed in the affidavit among the deceased's assets. 

Once the judge approves the small estate affidavit, a certified copy of the affidavit and the court order approving it must be filed (that is, "recorded") with the real property records of the county where the real property is located.

When may a judge approve a small estate affidavit?

The judge must examine the small estate affidavit. They may approve it if they decide that it meets the legal standards set for small estate affidavits.

Who gets copies of the small estate affidavit?

A certified copy must go to each person who:

• owes money to the estate, 
• has custody or possession of estate property, or
• acts as an agent for any other right belonging to the estate.

Where do you file a court-approved small estate affidavit?

File a certified copy of the affidavit and order of approval in the county property records. 

What is an application to determine heirship?

An application to determine heirship  asks a court to decide who should get the deceased's property. Like an affidavit of heirship, it may be used when there is no will, or the property was left out of the will. Unlike an affidavit of heirship, it requires a court proceeding and attorney representation.

When, why, and how do you use an affidavit of heirship?

An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. It is an affidavit used to identify the heirs to real property when the deceased died without a will (that is, intestate ). For help preparing one, read  How to Draft an Affidavit of Heirship .

The affidavit is filed ("recorded") with deed records in the county where the decedent’s real property is located. It does not transfer title to real property. However, Texas Estates Code 203.001 says it becomes evidence about the property once it has been on file for five years. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.

Usually, a title company will accept the affidavit to show the chain of title for purposes of selling the real property, but the heirs should check with their title company to be sure.

Who can witness an affidavit of heirship?

The person witnessing the affidavit should not be an heir, related to the deceased, or have any interest in the estate. 

Witnesses to an affidavit heirship must swear to the following conditions:

• They knew the decedent.
• The decedent did not owe any debts.
• The true identity of the family members and heirs.
• The person died on a certain date in a certain place.
• The witness will not gain financially from the estate.

How do you transfer a mobile home's title when the owner dies?

If the property to be transferred is a mobile home, use a Statement of Inheritance (Affidavit) . 

That form is available from the Manufactured Housing Division of the   Texas Department of Housing and Community Affairs .

Can you use an affidavit of heirship to transfer title to a car?

Yes. There is a specific form for that. The Texas Department of Motor Vehicles provides forms for transferring a motor vehicle's title.

See How to Transfer a Motor Vehicle After Death for the forms and instructions.

How do you use a transfer on death deed?

While they are alive, a property owner can file a transfer on death deed .

If the deed is done correctly, the property will be transferred immediately upon the transferor's death. The property never becomes part of the estate, so probate is unnecessary to change ownership.

What are some other resources if I want to learn about transferring property after death & avoiding probate court?

• Texas Young Lawyers Association :  Texas Probate Passport
• Houston Bar Association :  Elder Law Handbook
• Austin Bar Association :  People’s Law School videos related to probate

Nothing in this article should be considered legal advice. It is solely for informational purposes. Nor does it substitute for consultation with a competent probate attorney.  Nothing in this material creates or implies any attorney-client relationship.

Related Guides

I want to use a small estate affidavit to probate an estate..

• Small Estates (Transferring Property When Someone Dies)

Related Articles

Probating an estate without a will, applications to determine heirship, how to draft an affidavit of heirship, transfer on death deeds (todds), estate planning: planning who gets your property, texas probate passport: wills, estates, power of attorney, and probate.

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