Effective Dates: 8/02/2023 - Present

Identification Number:
GN 02315 TN 22
Intended Audience:See Transmittal Sheet
Originating Office:ORDP OISP
Title:Small Estate Statutes
Type:POMS Full Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM

Part GN – General

Chapter 023 – Underpayments

Subchapter 15 – Small Estate Statutes

Transmittal No. 22, 08/02/2023

Audience

PSC: CA, IES, RECONR, SCPS;
OCO-OEIO: CR, CTE, FCR, RECONR;
OCO-ODO: BTE, CS, CST, CTE, CTE TE, PAS, PETE, PETL, RCOVTA, RECOVR;
FO/TSC: CS, CS TII, CSR, CTE, FR, OA, OS, RR, TA, TSC-CSR;

Originating Component

OISP

Effective Date

Upon Receipt

Background

We worked with the Office of the General Counsel to clarify instructions to reflect changes in the Iowa and Louisiana Small Estates laws.

Summary of Changes

GN 02315.053 Iowa Small Estates

We have revised subsections A and B to reflect changes in Iowa law. Section 633.356 of the Iowa Code provides the procedure for the non-judicial handling of very small estates by affidavit of a successor. Iowa Code § 633.356 (effective July 1, 2019, to present). Sections 635.1 and 635.2 of the Iowa Code provide the procedure for the administration of small estates through issuance of letters of appointment to a personal representative. Iowa Code § 635.1 (effective July 1, 2020, to present), § 635.2 (effective July 1, 2018, to present).

Subsection A

• Updated title to include payment to the successor and very small estates;

• Updated gross value of the decedent's personal property from $25,000 to $50,000;

• Changed formatting and line spacing;

• Updated citations; and

• Added three additional bullets under criteria for affidavit regarding Medicaid benefits, department of revenue, and creditors.

Subsection B

• Updated title to clarify letters of appointment for administration to the personal representative;

• Updated gross value for small estate administration of probate assets from $100,000 to $200,000;

• Changed formatting and line spacing;

• Updated citations; and

• Clarify language regarding an authorized petitioner.

 

GN 02315.056 Louisiana Small Estates

We updated this subsection due to substantive changes in Louisiana law. Articles 3421, 3431, 3432, 3432.1, and 3434 of the Louisiana Code of Civil Procedure provide the procedure for the non-judicial handling of small succession by affidavit. La. Code Civ. Proc. Ann. Art. 3421 (effective Aug. 1, 2020 to present), Art. 3431 (effective Aug. 1, 2020 to present), Art. 3432 (effective June 7, 2012 to present), Art. 3432.1 (effective Aug. 1, 2020 to present), Art. 3434 (effective Aug. 1, 2022 to present). We also updated the entire subsection for gender neutral language.

Subsection B

• Updated gross value of the decedent's property from $75,000 to $125,000;

• Updated date of death prior to the date of filing from 25 years to 20 years;

• Added information regarding a small succession for testate and intestate;

• Removed "probated by court of another state" from number 5; and

• Updated citations.

Subsection C

• Updated title and information for C.2 to clarify inclusion for persons domiciled inside or outside of Louisiana who died testate (with a valid will);

• Updated C.2b.4 pertaining to the affidavit requirements for persons who died testate (with a valid will) to accurately reflect the statutory requirements as to legatees, not heirs as a legatee inherits through a valid will and an heir inherits through intestacy in the absence of a valid will;

• Clarified language in C.2.b.5 and 8; and

• Updated citations.

Subsection D

• Updated title to clarify that it is SSA’s policy of “good acquittance,” not Louisiana’s policy;

• Included a federally insured depository institution and legatees; and

• Updated citations.

 

GN 02315.053 Iowa Small Estates

A. Policy for payment to the successor based on affidavit-very small estates

Effective for estates of decedents dying on or after July 1, 2018, Iowa law allows payment to a decedent’s successor without procuring letters of appointment (described in GN 02315.053B in this section) if three criteria are met:

  • •

    The gross value of the decedent’s personal property is, or has been at any time since the decedent’s death, $50,000.00 or less;

  • •

    There is no real property in the estate, or the real property passes to persons exempt from inheritance tax as joint tenants with full rights of survivorship; and

  • •

    At least 40 days have passed since the death of the decedent.

    IOWA CODE § 633.356(1).

"Successor” means:

  • •

    If the decedent died testate (with a will), the reasonably ascertainable beneficiary or beneficiaries who succeeded to the particular item of property of the decedent under the decedent’s will;

  • •

    If the decedent died intestate (without a will), the reasonably ascertainable person or persons who succeeded to the particular item of property of the decedent under Iowa's laws of intestate succession;

  • •

    If the decedent received medical assistance benefits from the state, the Iowa Medicaid agency that provided the benefits is a successor pursuant to IOWA CODE § 633.356(8), which allows the funds in the account or other property to be paid up to the amount of the claim of the department of human services if no affidavit has been presented by a “successor” as defined in IOWA CODE § 633.356(2)(a) or (b).

    IOWA CODE § 633.356(2).

This procedure may be used only if no administration of the decedent’s estate is pending. IOWA CODE § 633.356(10).

If the three criteria of IOWA CODE § 633.356(1) as set forth above are met, a successor of the decedent may collect money or tangible personal property belonging to the estate by furnishing the holder of the decedent’s property an affidavit that contains:

  • •

    the decedent’s name, Social Security number, and the date and place of the decedent’s death;

  • •

    at least 40 days have elapsed since the death of the decedent, as shown by an attached certified copy of the death certificate of the decedent;

  • •

    the gross value of the decedent’s personal property is, or has been at any time since the decedent’s death, $50,000.00 or less, and there is no real property or the real property passes to person exempt from inheritance taxes joint tenants with full rights of survivorship;

  • •

    a general description of the property of the decedent that is to be paid, transferred, or delivered to or for the benefit of each successor;

  • •

    the name, address, tax identification number and relationship to the decedent of each successor, and whether any successor is under a legal disability;

  • •

    if applicable, the attached copy of the decedent’s will is the last will of the decedent and has been delivered to the office of a clerk of the district court in accordance with Iowa law;

  • •

    no persons other than the successors listed in the affidavit have a right to the interest of the decedent in the described property;

  • •

    the affiant requests that the described property be paid, delivered, or transferred to or for the benefit of each successor;

  • •

    no debt is owed to the department of human services for reimbursement of Medicaid benefits; or if debt is owed, that the debt will be paid to the extent of funds received pursuant to the affidavit;

  • •

    no inheritance or other taxes are owed to the department of revenue, or if taxes are owed, that the taxes will be paid to the extent of funds received pursuant to the affidavit;

  • •

    creditors, if any, will be paid to the extent of funds received pursuant to the affidavit; and

  • •

    the affiant affirms under penalty of perjury that the affidavit is true and correct.

    IOWA CODE § 633.356(3)(a).

If there are two or more successors, any of the successors may execute an affidavit. IOWA CODE § 633.356(3)(b).

The Iowa statute provides that receipt of an affidavit meeting the above requirements constitutes sufficient acquittance for the payment of money and discharges the holder from any further liability with respect to the money or property, and that the holder may rely in good faith on the statements in the affidavit and has no duty to inquire into the truth of any statement in the affidavit. IOWA CODE § 633.356(7).

References: IOWA CODE § 633.356 (effective July 1, 2019, to present).

B. Policy for administration of small estates-letters of appointment for administration to the personal representative

Effective for estates of decedents dying on or after July 1, 2020, Iowa law also provides for small estate administration when the gross value of the probate assets of a decedent is less than $200,000.00 upon a petition of an authorized petitioner. IOWA CODE § 635.1. Where there is no will, a petition for small estate administration may be made by a surviving spouse, heirs of the decedent, creditors of the decedent, or any other persons showing good grounds therefor; if there is a will, such a petition may be filed by any interested person. IOWA CODE §§ 633.227, 633.228, 633.290, 635.1.

The petition for the administration of a small estate must contain:

  • •

    the name, domicile, and date of death of decedent;

  • •

    the name and address of the surviving spouse;

  • •

    the name and relationship of each heir so far as known to the petitioner in an intestate estate;

  • •

    whether the decedent died intestate or testate, and, if testate, the date the will was executed;

  • •

    a statement that the probate assets of the decedent subject to the jurisdiction of this state do not have an aggregate gross value of more than $200,000.00 and the approximate amount of personal property and income for the purposes of setting a bond; and

  • •

    the name and address of the proposed personal representative.

    IOWA CODE § 635.2.

Upon petition of an authorized petitioner, the clerk shall issue letters of appointment for administration to the proposed personal representative named in the petition, if qualified to serve or upon court order. IOWA CODE § 635.1.Once the court appoints an authorized petitioner as the personal representative, he or she shall take possession of all the personal property of the decedent , except the property exempt to the surviving spouse. IOWA CODE § 633.351. The personal representative may maintain an action for the possession of such real and personal property or to determine the title to any property of the decedent. IOWA CODE § 633.351.

References: IOWA CODE § 633.227 (effective 1963 to present), § 633.228 (effective July 1, 2013, to present), § 633.290 (effective July 1, 2013, to present), § 633.351 (effective July 1, 2012, to present), § 635.1 (effective July 1, 2020, to present), § 635.2 (effective July 1, 2018, to present).

GN 02315.056 Louisiana Small Estates

A. Background on the Louisiana small succession statute

Articles 3421, 3431, 3432, 3432.1, and 3434 of the Louisiana Code of Civil Procedure provide a procedure for the non-judicial handling of small succession by affidavit.

B. Louisiana small succession procedure

Article 3421(A) of the Louisiana Code of Civil Procedure defines a small succession as the succession or the ancillary succession of a person who at any time has died leaving property in Louisiana having a gross value of $125,000 or less valued as of the date of death, or if the date of death occurred at least 20 years prior to the date of the filing of a small succession affidavit described below, leaving property in Louisiana of any value. Article 3421(B) of the Louisiana Code of Civil Procedure further defines a small succession to include a succession of a person who has died testate (with a will), leaving no immovable property, and probate of the testament of the deceased would have the same effect as if the deceased had died intestate (without a will).

Article 3431 of the Louisiana Code of Civil Procedure provides that it is not necessary to judicially open the small succession of a person domiciled in Louisiana who died intestate or testate as provided by Article 3421(B), or domiciled outside of Louisiana who died intestate or whose testament another state probated by court order, and whose sole heirs are their:

  1. 1. 

    descendants;

  2. 2. 

    ascendants;

  3. 3. 

    brothers or sisters, or descendants thereof;

  4. 4. 

    surviving spouse; or

  5. 5. 

    legatees under a testament.

When it is not necessary to judicially open a small succession under Article 3431, an affidavit of small succession meeting the requirements set forth in GN 02315.056C in this section is all that is necessary to authorize the release of any money or property described in the affidavit to the heirs listed in the affidavit.

C. Requirements for affidavits of small succession under Louisiana Law

1. Affidavit requirements for persons domiciled inside or outside of Louisiana who died intestate (without a valid will)

a. Affidavit execution requirements

For purposes of small succession of a person who died intestate while domiciled inside or outside of Louisiana, Article 3432 of the Louisiana Code of Civil Procedure provides that at least two persons must execute the affidavit, including the surviving spouse, if any, and one or more competent major heirs of the deceased, and the affidavit must be duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed. If the deceased had no surviving spouse, at least two heirs must sign the affidavit. If the deceased had no surviving spouse and only one heir, a second person who has actual knowledge of the matters stated in the affidavit must also sign it. A natural tutor may execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061 of the Louisiana Code of Civil Procedure.

b. Affidavit content requirements

Article 3432 of the Louisiana Code of Civil Procedure further provides that the affidavit must set forth:

  1. 1. 

    The deceased’s date of death, and their domicile at the time thereof;

  2. 2. 

    The fact that the deceased died intestate;

  3. 3. 

    The deceased’s marital status, the location of their last residence, and if he or she has a surviving spouse, the surviving spouse’s name, address, domicile, and location of last residence;

  4. 4. 

    The names and last known addresses of the deceased’s heirs, their relationship to the deceased, and a statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten (10) days’ notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object;

  5. 5. 

    A description of the deceased’s property, including whether the property is community or separate, and in the case of immovable property, sufficient identification of the property for purposes of transfer;

  6. 6. 

    A showing of the value of each item of property, and the aggregate value of all such property, at the time of the deceased’s death;

  7. 7. 

    A statement describing each heir’s respective interests in the property and whether a legal usufruct of the surviving spouse attaches to the property;

  8. 8. 

    An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the deceased’s succession; and

  9. 9. 

    An affirmation that, by signing the affidavit, the affiant swears under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief.

2. Affidavit requirements for persons domiciled inside of Louisiana who died testate (with a valid will) as provided by Article 3421(B) or persons domiciled outside of Louisiana who died testate (with a valid will)

a. Affidavit execution requirements

For purposes of small succession for a person domiciled inside of Louisiana who died testate as provided by Article 3421(B) or a person domiciled outside of Louisiana who died testate, Article 3432.1 of the Louisiana Code of Civil Procedure provides that at least two persons must execute the affidavit, including the surviving spouse, if any, and one or more of the deceased’s competent legatees, and the affidavit must be duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed. If the deceased had no surviving spouse, at least two persons who have actual knowledge of the matters stated in the affidavit must sign it. A natural tutor may execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061.

b. Affidavit content requirements

Article 3432.1 of the Louisiana Code of Civil Procedure further provides that the affidavit must set forth:

  1. 1. 

    The deceased’s date of death, and their domicile at the time thereof;

  2. 2. 

    The fact that the deceased died testate;

  3. 3. 

    The deceased’s marital status, the location of their last residence, and if he or she has a surviving spouse, the surviving spouse’s name, address, domicile, and location of last residence, together with the names and last known addresses of the deceased’s legal heirs, and identification of the legal heirs who are also the deceased’s forced heirs;

  4. 4. 

    The names and last known addresses of the deceased’s legatees, and a statement that a legatee not signing the affidavit was given ten (10) days’ notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object;

  5. 5. 

    A description of the deceased’s property, including whether the property is community or separate, and in the case of immovable property for a deceased domiciled outside of Louisiana, sufficient identification of the property for purposes of transfer;

  6. 6. 

    A showing of the value of each item of property subject to the jurisdiction of Louisiana courts, and the aggregate value of all such property, at the time of the deceased’s death;

  7. 7. 

    A statement describing each legatee’s respective interests in the property and whether a legal usufruct of the surviving spouse attaches to the property;

  8. 8. 

    An attachment consisting of certified copies of the testament and, if the testament has been probated by court order of another state, the probate order of the other state;

  9. 9. 

    An affirmation that, by signing the affidavit, the affiant, if a legatee, has accepted the deceased’s legacy; and

  10. 10. 

    An affirmation that, by signing the affidavit, the affiant swears under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief.

D. Policy of good acquittance and the effect of an affidavit under Louisiana law

Per Article 3434 of the Louisiana Code of Civil Procedure,a multiple original of an affidavit of small succession that meets all the requirements described above at GN 02315.056C.1 or GN 02315.056C.2 , constitutes full and sufficient authority for a federally insured depository institution , financial institution, trust company, warehouseman, other depository, or any person having such property in their possession or under their control to pay or deliver any of the deceased’s money or property to the deceased’s heirs and the surviving spouse in community, if any, in the percentages listed in the affidavit. The receipt of the persons named in the affidavit as the deceased’s heirs or legatees, or the surviving spouse in community thereof, constitutes a full release and discharge for the payment of money or delivery of property.

References: La. Code Civ. Proc. Ann. Art. 3421 (effective Aug. 1, 2020 to present), Art. 3431 (effective Aug. 1, 2020 to present), Art. 3432 (effective June 7, 2012 to present), Art. 3432.1 (effective Aug. 1, 2020 to present), Art. 3434 (effective Aug. 1, 2022 to present).

GN 02315 TN 22 - Small Estate Statutes - 8/02/2023