I. INTRODUCTION
Nebraska state law authorizes a procedure for disposing assets of “small estates” consisting of personal property owned by a decedent. Neb.Rev.Stat. § 30-24,125 allows personal property of a decedent’s estate not in excess of $100,000 to be paid and delivered pursuant to the execution and presentment of an affidavit by, or on behalf of, a successor of the decedent.
A. Small Estate Affidavit
Financial institutions have accepted these “small estate affidavits” for payment and delivery of personal property. A sample affidavit that may be used for obtaining personal property of a decedent in cases where the personal property of the decedent’s estate does not exceed $100,000, can be found by going to https://supremecourt.nebraska.gov and searching for “Affidavit for Transfer of Personal Property without Probate.” The provisions of Neb.Rev.Stat. §30-24,125 require: (1) that the value of all of the personal property in the decedent’s estate, wherever located, less liens and encumbrances, not exceed $100,000; (2) a certified or authenticated copy of the decedent’s death certificate to be attached to the affidavit; (3) that 30 days have elapsed since the date of death of the decedent as shown in a certified or authenticated copy of the decedent’s death certificate attached to the affidavit; (4) the claiming successor to state his or her relationship to the decedent or, if there is no relationship, the basis of the successor’s claim to the personal property; (5) the person or persons claiming as successors under the affidavit to swear or affirm that all statements in the affidavit or true and material and to further acknowledge that any false statement may subject him or her to penalties relating to perjury under Neb.Rev.Stat. § 28-915; (6) a statement that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (7) that the claiming successor is entitled to payment or delivery of the property.
B. Checks Made Payable to “To the Estate of”
The provisions of Neb.Rev.Stat. §30-24,125 relating to the “small estate affidavit” procedure for payment and delivery of personal property were amended in 2023 (LB 157) to authorize a financial institution, upon the presentation of an affidavit, to accept and negotiate a check, draft, or other negotiable instrument made payable to the decedent or the decedent’s estate and presented for deposit even though the financial institution is not indebted to the decedent.
As amended, the provisions of Neb.Rev.Stat. §30-24,125 allow a claiming successor to present an affidavit for payment and delivery of personal property and endorse or negotiate any instrument evidencing a debt belonging to the decedent that is a check, draft, or other negotiable instrument that is payable to the decedent or the decedent’s estate. Upon presentation of such an affidavit for payment and delivery of personal property, a financial institution may accept a check, draft, or other negotiable instrument evidencing a debt belonging to a decedent and payable to the decedent or the decedent’s estate, to be endorsed or negotiated by the claiming successor identified in the affidavit. A financial institution accepting such a check, draft, or other negotiable instrument presented for deposit in such manner is discharged from all claims for the amount accepted. III. REAL PROPERTY PROCEDURES
Nebraska state law recognizes a “small estate affidavit procedure” by which a decedent’s real estate located in Nebraska, not exceeding $50,000 in value, may be obtained. The law provides that 30 days after the death of a decedent, any person claiming to be a successor to the decedent’s interest in real property in this state may execute an affidavit to obtain title to such real estate. The affidavit must be signed by all persons claiming to be successors or by parties legally acting on their behalf and must describe the real property owned by the decedent and the interest of the decedent in the property. The affidavit must be filed with the register of deeds of a county in which the real property of the decedent that is the subject of the affidavits is located and must state that:
(1) the value of a decedent’s interest in all real property in the decedent’s estate located in this state does not exceed $,000. (Note: Value of a decedent’s interest is to be determined from the value of the property as shown on the assessment rolls for the year in which a decedent died, less real estate taxes and interest thereon if any is due at the time of death);
(2) 30 days have elapsed since the death of the decedent as shown in a certified or authenticated copy of a decedent’s death certificate attached to the affidavit; no application or petition for the appointment of a personal representative is pending or has been granted in the state of Nebraska;
(3) the claiming successor is entitled to the real property by either reason of the homestead allowance, exempt property allowance, or family allowance, by intestate succession, or by devise under the will of the decedent. (NOTE: If claiming by devise under the will of the decedent, a copy of the will must be attached to the affidavit);
(4) the claiming successor has made an investigation and has been unable to determine any subsequent will;
(5) no other person has a right to the interest of the decedent in the described property;
(6) the claiming successor’s relationship to the decedent and the value of the entire estate of the decedent subject to probate; and
(7) the person or persons claiming as successors under the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to penalties relating to perjury under Neb.Rev.Stat. § 28-915.
In addition, the recorded affidavit and certified or authenticated copy of the decedent’s death certificate must also be recorded by the successor in any other county in the state in which the real property of the decedent that is the subject of the affidavit is located.
IV. SUCCESSOR, PURCHASER AND SECURITY INTERESTS PROTECTED
A successor taking title to real estate pursuant to the “small estate affidavit procedure” is granted the same protection as a distributee who has received a distribution from a personal representative as provided in Neb.Rev.Stat. §30-24,106. In addition, a purchaser of real property from, or lender to, a person named as a successor in an affidavit under these provisions of law has the same protection as a person purchasing from, or lending to, a distributee who has received a deed of distribution from a personal representative as provided in Neb.Rev.Stat. § 30-24,108.
The law further provides that “Nothing in this section affects or prevents any proceeding to enforce any mortgage, pledge or other lien upon the real property described in the affidavit.” V. SAMPLE FORMS
You can find samples of the forms by going to the Nebraska Supreme Court’s website at https://supremecourt.nebraska.gov and searching for “Affidavit for Transfer of Personal Property without Probate” and “Affidavit for Transfer of Real Property without Probate.”