Can you use a small estate affidavit in Maryland for an intestate estate instead of formal probate?

Short answer: Possibly — but it depends on the assets, the type of property, and whether the statutory conditions for Maryland’s small estate procedure are met. A small estate affidavit can be used to collect certain personal property of a person who died without a will (intestate) when the estate falls within the state’s limits and other requirements are satisfied. If those conditions are not met, formal probate or appointment of an administrator will be required.

Detailed answer — how Maryland’s small estate process works and how it applies to intestacy

This discussion explains the common elements of Maryland’s small estate rules and how they affect an intestate estate. It does not replace checking current statutes or getting advice from a lawyer or the Register of Wills.

What the small estate procedure does

Maryland provides a simplified process that lets certain persons named by law (usually heirs or a surviving spouse) collect the decedent’s personal property (bank accounts, vehicles, personal effects, etc.) without full formal probate. The process uses a sworn affidavit (commonly called a small estate affidavit or similar form) that the person presenting it gives to the holder of the asset (for example, a bank, brokerage, or title agency). The holder can rely on the affidavit to release the asset or transfer it to the claimant.

Key limits and conditions

• The small estate process generally applies to personal property, not to real estate. If the decedent owned real property (land or houses), you usually cannot clear title or transfer ownership with only a small estate affidavit.
• The estate must qualify under Maryland’s statutory small estate rules and monetary threshold. These thresholds and requirements can change. Confirm the current dollar limit and rules with the Register of Wills or the Maryland courts before relying on a small estate affidavit.
• If someone has already opened a formal probate or if an executor or administrator has been appointed, the small estate affidavit may not be available or accepted.
• Creditors’ rights are not eliminated by using a small estate affidavit. The affidavit does not create the same notice and claims process as formal probate. Some institutions or parties may ask for extra documentation or refuse to rely on the affidavit.
• The person using the affidavit must correctly identify heirs and their shares under Maryland intestacy law. If heirs disagree or distributions are contested, formal probate is safer and often required.

Using a small estate affidavit for an intestate estate

When the decedent died intestate (without a will), the affidavit claimant must be the person entitled to receive the specific personal property under Maryland’s intestate succession rules. That typically means the decedent’s survivors (spouse, children, parents, siblings, etc.) in the order and proportions set by the law.

If the estate is small enough and the assets are the kind covered by the statute, an heir or the surviving spouse can usually use the small estate affidavit to collect those assets and distribute them to the rightful beneficiaries according to intestacy rules. But if multiple heirs exist and there is any dispute about who gets what, a small estate affidavit can be risky because there is no court-supervised distribution process.

When you should NOT use a small estate affidavit

• The estate owns real estate that must be transferred or sold.
• The estate’s value or type of assets exceed the statutory small estate limits.
• There is a disagreement among heirs, or potential heirs are unknown or unreachable.
• A creditor dispute is likely or creditors need formal notice and claims administration.
• Someone has already begun formal probate or a personal representative has been appointed.

Where to confirm the rules and find forms

For current Maryland forms, instructions, and official guidance, consult the Maryland courts and the Register of Wills. The Maryland Judiciary has resources about probate and small estates that explain eligibility and provide sample forms and filing guidance:

• Maryland Courts: Probate and Estate Administration information — https://www.mdcourts.gov
• Maryland General Assembly (Maryland Code / Estates & Trusts) — https://mgaleg.maryland.gov

Helpful practical steps when you think the small estate option might apply

1. Identify all assets and classify them as personal property vs. real property. Personal property (bank accounts, vehicles, personal effects) is most likely collectible with a small estate affidavit.
2. Check the current Maryland small estate dollar threshold and rules with the Register of Wills in the county where the decedent lived or with the Maryland courts website. Thresholds can change, so verify current figures.
3. Obtain certified copies of the death certificate.
4. Assemble documents to prove your relationship to the decedent (birth certificates, marriage certificate, family records) and proof of your identity.
5. Confirm no probate case is already open for the decedent. If one is open, contact that clerk or the appointed personal representative instead of using an affidavit.
6. Use the official small estate affidavit form if available from the Register of Wills or the Maryland courts. Many banks require a particular affidavit format or notarization.
7. When in doubt because of asset size, complexity, or potential disputes, consider opening formal probate or consult an attorney to avoid liability for wrongful distribution.

When to talk to an attorney

Talk with an attorney if the estate owns real property, if the estate is close to or above the small estate limit, if heirs disagree, or if creditors might make claims. An attorney can advise whether a small estate affidavit is safe in your situation or whether formal probate (appointment of an administrator and court oversight) is needed.

Summary

Maryland does allow a simplified small estate procedure that can be used to collect and distribute certain personal property of a decedent who died intestate, but only if the estate meets the statutory conditions and limits and if no issues (real property, disputes, open probate, or substantial creditor concerns) require formal probate. Confirm the current dollar threshold and procedural details with the Register of Wills or the Maryland courts before proceeding.

Disclaimer: This is general information only and is not legal advice. Laws and procedures change. For advice about a specific situation, contact a licensed Maryland attorney or the Register of Wills for the county where the decedent lived.