Probate Alternative: Collection by Affidavit

In Minnesota, if the decedent owned probate property, but the value of the property is small enough, the legislature created a method for collecting that property without having to open a full-blown probate proceeding.  This process is known as Collection by Affidavit and the requirements are set out in Minn. Stat. Section 524.3-1201.

If the net value of the decedent's probate assets do not exceed $50,000 (as of 2011), then the collection by affidavit process can be used.  Net value means the value of the property minus any liens or encumbrances on the property.  Note that collection by affidavit does not apply to real estate.  It only applies to personal property.

The value of decedent's non-probate property does not matter.  For example, decedent could have non-probate assets such as a $1 million life insurance policy and a $2 million house owned in joint tenancy, but as long as the probate assets do not exceed $50,000, then probate may not be necessary.

Aside from the asset value limitation, there are several further requirements to use the collection by affidavit process:

  • Thirty days must have passed since the death
  • Certified copy of the death certificate must be attached 
  • There must not be an open or pending probate proceeding
  • The Affidavit must be presented by a successor individual entitled to receive the property

A successor individual entitled to receive the property is a person who is either named as a recipient of the property in the decedent's Will, or if there is no Will, then a person who would be entitled to the property according to the laws of intestate succession.

After meeting the requirements, the individual claiming the property (the heir) presents the completed affidavit to the person or entity in possession of the property.  The possessor of the property has a legal obligation to turn the property over to the claiming individual and by doing so, relieves themselves of any liability regarding the property.

So, what happens if there is no Will and you are entitled to the property, but someone else has already used collection by affidavit to get the property?  The answer is that if you have a higher priority entitlement to the property, then you can present an affidavit of collection to that person and they are legally obligated to turn the property over to you.

No notice to other parties is required, no personal representative is appointed, and there are no court proceedings.  Whereas an average probate proceeding lasts between 6-9 months, collection by affidavit can take place 30 days after death.  If handled correctly, the Collection by Affidavit process saves heirs significant time and money.