How to Probate a Small Estate in New York

 

Small estates don't have to go through probate to be distributed. Find out what New York's limit is for this small estates procedure.

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Small Estate Limits for New York

There is no Affidavit procedure in New York. But there's a summary probate procedure available for estates with a gross value of $50,000 or less. (Gross value here means you do not subtract the liens and encumbrances like mortgages). This figure excludes amounts that must be set aside for surviving family members and real estate. 

N.Y. Surr. Ct. Proc. Act 1301.

Forms available at www.nycourthelp.gov

What's Included in valuing the estate?

Not everything a person owns is part of their "Estate" for probate purposes.

If you're wrapping up the estate of a New York resident who died with an estate that's worth less than a certain dollar amount, you won't have to go through a formal probate court proceeding. 

It doesn't matter whether or not the deceased person left a will; what matters is the value of the assets left behind. If the estate's value is under the "small estates" limit in New York, you can take advantage of a simplified probate procedure, often called a "summary probate." Instead of having a court hearing in front of a judge, you may need only to file a simple form or two and wait for a certain amount of time before distributing the assets.

In some states, it can be even easier: Inheritors can use a simple affidavit to claim assets. (An affidavit is a statement you sign in front of a notary, swearing something is true.) If you live in one of those states, you just have to wait a required period of time, then sign a simple, sworn statement that no probate proceeding is happening in your state and that you are the person entitled to inherit a particular asset--a bank account, for example. 

Adding it up, what's in, what's not

When you are trying to determine whether or not an estate's value is below the New York small estates limit, the first thing to do is make a list of the assets. A simple spreadsheet or list will do.

Not everything a person owns counts, though.

Include only the things that pass to heirs and beneficiaries by will or, if there's no will, by New York intestacy laws, which determine who inherits if there is no will.

Don't count:

  • assets that are held in joint tenancy,
  • retirement plans,
  • payable-on-death (POD) bank accounts,
  • real estate transferred by a transfer-on-death deed, or
  • transfer-on-death brokerage accounts.

These assets don't count towards the small estate limit because they pass to the named beneficiaries regardless of what a will (or state intestacy law) says. If a person had a life insurance policy with a named beneficiary, the insurance proceeds won't count either.

Loans on the property?

Some states also don't count the amount of money owed on a car, or a house, while others count the fair market value of an asset, even it is subject to a loan or a mortgage.

For example, say Donald died in New York and owned the following assets:

  • A checking account with $2,345
  • A savings account with $2,567
  • A car with a blue book value of $6,500 (and no loan)
  • An IRA with $32,000, naming his son and daughter as beneficiaries
  • A life insurance policy worth $15,000, naming his son and daughter as beneficiaries

To figure out whether Donald is above or below New York's small estate limit, only the bank accounts and car would be counted, for a total of $11,412.

His IRA and the life insurance proceeds aren't counted towards the limit because they will go to his beneficiaries directly. The value of the car is included because he doesn't owe money on it.

That means the value of Donald's estate is under the New York small estates limit. His son and daughter, who inherit his assets under New York's intestacy laws because Donald had no will, would follow the small estates procedure.

Simplified Probate Options available in New York

New York allows for a couple of expedited or simplified probate processes:

  1. Small Estate or Voluntary Administration: This is an expedited probate procedure available for estates with personal property not exceeding $50,000. Note that real estate property does not count toward this total.

    • File an "Affidavit of Voluntary Administration" (either a Form SCPA 1310 or Form AOC-830) with the Surrogate's Court in the county where the decedent resided. The affidavit is typically available 30 days after the decedent's death.
    • The court will issue a "Certificate of Voluntary Administration" for the estate's personal property. This certificate grants authority to distribute the assets.
    • Assets should then be collected, debts paid, and the remainder of the estate distributed according to the decedent's will or state law if no will exists.
    • A final account must be filed with the court detailing how the estate's assets were managed and distributed.
    • This procedure avoids the time-consuming task of formally probating the will, proving its validity, and having an executor appointed. The court's role is less involved.

    Citation: New York SCPA § 1301, 1303, and 1304 (Source: New York State Assembly - SCPA Article 13)

  2. Informal Probate (Simplified Probate for Uncontested Wills): Some Surrogate's Courts in New York offer an "informal probate" process for uncontested wills. This process simplifies the regular probate process and is quicker than a formal probate.

    • The process begins by filing an application with the Surrogate's Court in the county where the decedent lived. The application should include necessary information such as the will itself, a list of assets, death certificate, and a list of interested parties (heirs and creditors).
    • If the court accepts the application, they issue "Letters Testamentary" or "Letters of Administration", which gives the executor (or administrator if no will) the legal authority to administer the estate.
    • The executor can then gather assets, pay off debts, file necessary tax returns, and distribute the remaining property as the will directs.
    • The executor may need to provide a final account of the administration to the court and the interested parties.
    • This process avoids many of the court hearings and notifications usually required in a formal probate, speeding up the overall process.

    Citation: Not universally applicable; check with local Surrogate's Court for specific procedures. (Source: New York Courts - Probate)





Jurisdictional relevance: ST

There are versions of this article for each State.