North Carolina Small Estate Affidavit
The North Carolina Small Estate Affidavit is a two-page legal form provided by the North Carolina Administrative Office of the Courts that once completed, essentially allows the individual who created it (a party known as the Affiant) to approach anyone who is in possession of the Decedent’s property listed in the Affidavit to demand the payment, delivery, transfer, of issuance of that property. Many of the state law requirements regarding the Affidavit’s execution are contingent on whether or not the Decedent left a will, as outlined below.
Laws & Required Conditions
Laws: §§ 28A-25-1 to 28A-25-7
Maximum Estate Value: $20,000 (a surviving spouse may be entitled to a maximum of $30,000)
Required Conditions: State law permits the use of a North Carolina Small Estate Affidavit in cases where a Decedent died intestate (without a will) or testate (with a will). The provisions § 28A-25-1 and § 28A-25-1.1 – 1 respectively outline the required conditions that the Affiant must abide by.
Both intestate and testate cases require the Affidavit to categorically state:
- It has been thirty (30) days since the passing of the Decedent,
- The Affidavit must concern either “tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the Decedent,”
- The Decedent’s a) name and b) residence at the time of their death c) date and place of their death,
- The petition for a personal representative has not nor will not be processed, and
- A description of each part of the real property the Decedent owned at the time of his or her death which is detailed enough for identification purposes,
- Additional information, outlined in § 28A-25-1 (for intestate cases) and § 28A-25-1.1 – 1 (for testate cases), will be required if the Affiant is the surviving spouse who a) is entitled to the entirety of the Decedent’s property b) wishes to collect the Decedent’s property up to $30,000 in value,
- Before the Affiant presents the completed Affidavit to any party who is in possession of the Decedent’s property, they must file it in the clerk of superior court’s office, of which must be located in the county where the Decedent was residing at the time of his or her death.
Intestate cases additionally require the Affidavit to categorically state:
- The Affiant’s name and address, as well as the fact that they are, “the public administrator or an heir or creditor of the Decedent”,
- That the personal property left behind is within the value limit established by state law, and
- The names and addresses of anyone entitled, as per the Intestate Succession Act, to the Decedent’s personal property and their relationship to them (if any).
Testate cases additionally require the Affidavit to categorically state:
- The Affiant’s name and address, as well as the that they are, “the public administrator, a person named or designated as executor in the will, devisee, heir or creditor, of the Decedent”,
- The fact that the Decedent died with a will that included personal property within the upper-value limit dictated by the state,
- The fact that the Decedent’s will has been:
- Admitted to probate in the court of the appropriate county, and
- Recorded in each county where any real property owned by the Decedent at the time of their death (the will must be duly certified),
- That affixed to the Affidavit is a certified copy of the Decedent’s will, and
- The names and addresses of anyone entitled, under the will’s provisions, or if applicable, of the Intestate Succession Act, to the Decedent’s property and their relationship to them (if any).