What Is A Small Estate Proceeding In New York

by ECL Writer
New York Small Estate Affidavit

A small estate proceeding in New York is a legal process that allows for the transfer of property from a deceased person’s estate to their heirs or beneficiaries, without the need for a full probate proceeding. This process is designed to be simpler, quicker, and less expensive than a full probate proceeding, and is available in cases where the value of the estate is below a certain threshold.

In New York, the threshold for a small estate proceeding is currently $50,000. This means that if the value of a deceased person’s estate is less than $50,000, their heirs or beneficiaries may be able to use a small estate proceeding to transfer ownership of the property without going through a full probate proceeding.

To start a small estate proceeding in New York, the person who is seeking to transfer ownership of the property must file a petition with the Surrogate’s Court in the county where the deceased person lived. The petition must include information about the deceased person’s assets, debts, and beneficiaries, as well as any other relevant information.

Once the petition has been filed, the court will appoint a voluntary administrator to oversee the transfer of the property. The voluntary administrator is usually a close relative or friend of the deceased person and is responsible for gathering information about the estate’s assets and debts, paying any outstanding debts or taxes, and distributing the remaining property to the heirs or beneficiaries.

Unlike a full probate proceeding, a small estate proceeding in New York does not require a court-appointed executor or administrator, and there is no requirement to publish a notice to creditors. This can make the process faster and less expensive, as there are fewer legal requirements and fewer opportunities for disputes or challenges to the transfer of property.

However, it is important to note that a small estate proceeding in New York may not be appropriate in all cases. If the deceased person’s estate is more complex, or if there are disputes among the heirs or beneficiaries, a full probate proceeding may be necessary to ensure that the transfer of property is carried out fairly and legally.

What Is A Small Estate Affidavit In NY?

In New York, a small estate affidavit, also known as a “Voluntary Administration” form, is a legal document used to transfer the assets of a deceased person to their heirs without the need for a formal probate process.

A small estate affidavit can be used when the total value of the deceased person’s assets, excluding real property, is $50,000 or less. The affidavit must be signed by the decedent’s distributees (heirs), and it must state that the estate qualifies for voluntary administration.

Once the small estate affidavit is filed with the Surrogate’s Court in the county where the deceased person lived, the court will review and approve it. The court will then issue a Certificate of Voluntary Administration, which will authorize the transfer of the deceased person’s assets to their heirs.

It is important to note that the small estate affidavit process is not available if the deceased person owned real property or if their total assets exceed $50,000. In those cases, a formal probate proceeding may be necessary. Additionally, if there are disputes among the heirs or questions about the validity of the decedent’s will, a formal probate proceeding may be necessary.

What Estates Qualify for a Small Estate Proceeding?

If the decedent left behind $50,000 or less in personal property, voluntary administration is permitted under Article 13 of the SCPA. Cars, money, and stocks are examples of personal property, as opposed to real estate. When the dead owned real property entirely in their own name, the Voluntary Administration process was not an option.

Decedents with modest assets are not the only ones who can use voluntary administration. Sometimes the dead owned only specific assets in their sole name. Married couples who have joint bank accounts or survivorship rights in real estate frequently experience this. Most accounts may have had beneficiaries designated by the decedent. In some situations, just some property must go via the Surrogate’s Court. Other times, a deceased person transferred most of their assets to a trust, but not all of them. A voluntary administration is an option if there are less than $50,000 in unrestricted assets.

How Do I File a Voluntary Administration?

“Affidavit of Voluntary Administration” filing is how the small estate process is started. The Petitioner is either the Executor designated in the decedent’s Will or, in the absence of a Will, the nearest surviving relative. In order to collect the decedent’s assets, settle any debts, and distribute the property to those who are legally entitled to inherit, the petitioner is petitioning the court for the right to do so. If a will exists, the beneficiaries listed there inherit. If there is no Will, the estate is distributed in accordance with intestacy statutes. Voluntary administering Compared to a probate or full administration procedure, the proceeding is less complicated. The distributees of the decedent are not needed to provide consent or a waiver (heirs who will inherit under the estate). The only information the Court gives the distributees is that a proceeding has been filed. As a result, expensive litigation regarding the appointment of a fiduciary is avoided.

Drawbacks of the Voluntary Administration

There are some issues with the voluntary administration proceeding. Only the precise assets stated on the Affidavit of Voluntary Administration are subject to collection by the designated Administrator. Only in a full probate or administration proceeding is such vast jurisdiction available. The broad power to collect and distribute any additional assets is not within the purview of the Administrator. The Administrator must return to court if they discover assets that were not disclosed in the initial affidavit. Additionally, the Administrator must change the case to a full probate or Administration if the assets are more than $50,000. Due to this, it may be prudent to move on with a complete probate or administration proceeding where there is uncertainty regarding the assets.

A modest estate proceeding can be filed for $1. Even though the Voluntary Administration Process is straightforward and affordable, mistakes can be pricey. An experienced Trust and Estates lawyer should always be consulted to determine whether a minor estate procedure is the right course of action.

How to Get a small estate affidavit in New York

Step 1 – Verify Eligibility

This will consist of examining the estate of the decedent. Make a list of the decedent’s assets. If the estate contains any real property — land and fixtures — then it is not eligible. Make sure that the total value of the personal property is less than $50,000. Additionally, if the estate is involved in any pending or possible litigation, such as a lawsuit that might be filed surrounding the decedent’s death, then the estate should go through the regular probate process, not voluntary administration.

Step 2 – Gather Documents

Several documents are needed to file the small estate affidavit. Before attempting the file, the person who fills out the affidavit (known as “the affiant”), should have (i) the death certificate of the decedent; (ii) contact information for all other possible heirs; (iii) information regarding any unpaid creditors of the decedent; (iv) an enumeration of the estate’s assets, as described in the previous step; and (v) the decedent’s will, if there was one.

Step 3 – File the Affidavit

If the decedent had a will, the person that the will names as an executor will be the person to fill the form. If the decedent did not have a will, then the person that should file the form will be determined through New York’s intestate succession scheme.

A formal state-produced version of the form is available electronically through New York’s DIY Forms application. However, any version of the form is acceptable in most counties as long as it contains the necessary information. It’s wise to contact a specific county court to determine whether or not they require the state’s version of the affidavit. Either way, the form needs to be printed out and filed in person at the surrogate’s court for the county where the decedent resided at the time of death. For help finding the court, use the Court Locator.

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