A small estate affidavit can be used in Nebraska to avoid probate court for estates under a certain value. This can help loved ones, and beneficiaries get benefits from the estate more quickly without a long legal process. If you intend to plan ahead to help your loved ones avoid these stressors, a Lincoln estate planning attorney can go over the documents and entities you can use to protect your interests.
Why Do You Want to Avoid Probate?
Probate court is how an individual’s estate is managed, distributed, and settled by the state. The probate process is used whether the deceased died with a will or without one. The court will determine if an existing will is legitimate and either uphold or void it. The judge will provide authority to either the executor named in a valid will or a personal representative of the court’s choosing. This individual must then pay debts and distribute the estate.
Until probate has been completed, the beneficiaries named in a will or the intestate heirs cannot access the benefits of their inheritance. There is a long process where the executor or personal representative inventories the assets and pays expenses, taxes, and debts. Once these actions are complete, the representative will distribute the estate. If there are any disputes over the will, creditor claims, or the abilities of the representative, the process will be even longer.
Waiting for the end of probate can be frustrating, especially as family members are dealing with the loss of their loved one. A complex legal proceeding is often the last thing anyone wants to deal with. Probate is also expensive, impacting the benefits that beneficiaries receive. The ideal way for an estate to avoid probate is through comprehensive estate planning, but this is not helpful when an individual has already passed. However, there are other options to avoid probate.
Understanding Small Estate Affidavits in Nebraska
If an estate qualifies for a small estate affidavit, it can allow beneficiaries or an executor to settle an estate entirely outside of the probate process. Beneficiaries can receive their inheritance immediately and without lengthy court oversight. There are different affidavits in Nebraska for personal and real property.
Affidavit for Personal Property
An affidavit for personal property, once prepared, can be presented alongside the death certificate to the party that holds the property. This may include a person, a bank, or another institution. To qualify for a personal property small estate affidavit, the following must be true:
- The entire estate has a fair market value of less than $100,000, which includes all property owned minus liens or encumbrances.
- At least 30 days have passed since the individual died.
- The person filing is not a creditor of the estate.
- The estate has no personal representative and no application or petition for a personal representative.
- Ownership of real property doesn’t have to be transferred.
- Everyone with interest in the property signs the affidavit and no one else has a right to the property.
Affidavit for Real Property
An affidavit for real property is filed in the county where the real estate is located with the register of deeds offices. To qualify for a transfer of real property with a small estate affidavit, the following must be true:
- The person filing is entitled to the property under the deceased’s will, and they have not found another will, or under the homestead allowance, intestate succession, or other allowance.
- At least 30 days have passed since the decedent’s death.
- No other person has a right to the filing party’s interest in the property.
- The value of the real property that the filing party has interest in is $100,000 or less, which increased from $50,000 in 2024.
- There is no personal representative, petition, or application.
- Any other party with interest in the property signs the affidavit.
In both types of affidavits, the individual filing is liable for any creditor’s debts, but they cannot be liable for more than the value that they inherit.
FAQs
Q: How Much Does an Estate Have to Be Worth to Go to Probate in Nebraska?
A: An estate worth more than $100,000 in fair market value will likely enter probate unless the deceased used estate planning tools. Estates without estate planning may avoid probate if they qualify for a small estate affidavit. If the estate has less than $100,000 in real property and less than $100,000 in personal property, it may qualify for a small estate affidavit. The estate must also meet other requirements, and family members must actively file for the affidavit.
Q: How Do I Transfer Property Without Probate in Nebraska?
A: You can transfer property without probate in Nebraska in several ways. These include:
- Trusts: These enable you to pass assets outside of the probate process. You can pass your entire estate through one or multiple trusts to bypass probate.
- Specific Transfers: An asset or account that can be assigned a Pay on Death or a Transfer on Death designation can go immediately to a named beneficiary.
- Small Estate Affidavit: This can allow a certain value of assets to be transferred outside of probate.
Q: Who Inherits Without a Will in Nebraska?
A: If there is no will in Nebraska, the estate is distributed to close family members. The first several steps of this succession include:
- A surviving spouse inherits the entire estate if there are no surviving descendants or parents.
- A spouse inherits the first $100,000 plus one-half of the intestate balance if there are only surviving parents. The rest of the estate passes to the parents equally.
- A spouse inherits the same as the prior step if all surviving descendants are also descended from that spouse. The remaining passes to the surviving descendants equally or by representation.
Q: What Is a Simplified Probate in Nebraska?
A: A simplified probate in Nebraska, also called summary administration, is a faster probate process for smaller estates. This is not the same as a small estate affidavit, and it does not allow the estate to entirely bypass probate. An estate may qualify for summary administration if its value does not exceed the homestead allowance, except for certain exempt property. Beneficiaries or heirs can receive their assets more quickly with this process than in the longer probate process.
Avoiding Probate With Comprehensive Estate Planning in Lincoln
Contact an estate planning attorney at Stange Law Firm to help your loved ones avoid probate.
