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What Is an Affidavit Of Collection?

Heirs of an estate can file an affidavit of collection to take possession of assets without going to probate court.
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  • Written By: Daphne Mallory
  • Edited By: Melissa Wiley
  • Last Modified Date: 04 July 2014
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An affidavit of collection of personal property or affidavit of collection of estate assets is used by an heir or beneficiary of the decedent to legally take ownership of the decedent’s assets in lieu of going to probate court. Many court systems allow the use of this legal document in cases where the estate is small enough, minus debts and liens. Each jurisdiction sets its own estate value amount, and if the value of the estate assets exceeds that amount, then the heirs often have to go to probate court. An affidavit of collection often cannot be submitted to obtain real estate assets. The affiant, the person who signs the affidavit, often has to initiate probate proceedings in order to obtain a legal transfer of the decedent’s real estate.

The purpose of the affidavit of collection is to provide an expedient method for heirs of small estates to gain possession and ownership of personal property owned by the decedent. Probate court proceedings can be a lengthy process, but an affidavit of collection to obtain personal property is a much shorter process. It’s also a simpler process because court hearings are not required. The courts and the collectors of the estate both benefit from using this affidavit, especially when the collector is a surviving spouse. The spouse is able to access the funds needed for living expenses, to handle the financial affairs of the estate, or to provide support for the children.

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It often is not necessary for collectors to write an affidavit of collection because many courts provide their own forms. The clerk of the court has the forms available, and the clerk is the one who will receive and approve of the affidavit. The form is often short, consisting of one to two pages that list various types of personal property, such as brokerage accounts, bank accounts, and insurance proceeds. The court may also require an account of assets that are subject to probate court hearings, such as real estate assets and interest in business ownership. The purpose of listing those assets is to determine the overall value of the estate, which is used to determine whether a probate court proceeding is required in lieu of an affidavit of collection.

Collectors must have legal standing to file an affidavit of collection with the court. Common examples include a surviving spouse, a child, or a parent. The probate code of the jurisdiction may also give legal standing by law to other individuals, such as a guardian of the estate.

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