Probate for Small NY Estates

Courthouse for estate probate

In New York, full probate is not required for "small" estates: an executor can instead request Voluntary Administration, saving considerable effort and cost.

Small Estate Definition

In NY, an estate qualifies as "small" if the qualified gross value is <$50,000 (value assets as of the date of death; ignore debts).

Assets jointly owned with other people, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions should not be included in this valuation.

NY also provides a family exemption that may exclude up to almost $100,000 of personal property (see NY Personal Property Exemptions).

Note that real property (i.e., real estate) cannot be handled via the small estate process, so if the estate contains real property owned solely by the decedent, you may need to go through probate regardless of overall estate value (see NY SCPA § 1302).

See NY SCPA § 1301.

Voluntary Administration Process

If the estate qualifies as "small", you can bypass full probate and use voluntary administration to settle the estate:

  1. File an affidavit of voluntary administration with the local Surrogate's Court (there is no mandated waiting period after the death)
  2. The court will notify certain parties, then create a certificate giving you authority to act as executor
  3. You can use this certificate obtain possession of estate assets from their current custodians
  4. Settle the estate in the normal manner (pay all debts, distribute assets)
  5. File an account report form with the court showing what you collected and disbursed

You can find additional NY small estate forms online (not normally needed).

See NY SCPA Article 13.

Affidavit of Voluntary Administration

You can generate an affidavit for voluntary administration online, or you can fill out the NY affidavit form directly. You will need to include:

  • Name and address of decedent
  • Name and address of all close relatives
  • List of all assets and unpaid debts

File the affidavit with the local Surrogate's Court (see below), and attach:

  • Name and address of the decedent
  • Certified copy of the death certificate
  • Copy of the will (if any)

You will need to get the affidavit notarized before submission.

Estate Settlement Considerations

Estate debts have priority over most distributions, so you should arrange to have all debts resolved before distributing assets using the approaches described on this page. Other than under the Small Estate Set Aside (which eliminates most debts), unpaid estate creditors have the right to sue heirs for the value of any distributions received.

Before paying any debts or making any distributions, be sure to account for any NY Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

No Small Estate Affidavit

Many people ask about using a small estate affidavit without any court involvement, but NY does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in NY.

Court

In New York, your estate's local Surrogate's Court, a New York City Surrogate's Court or county Surrogate's Court outside New York City, handles wills and estate proceedings (including probate).

See NYCourts Probate website for additional helpful information.

See also General Probate.

Copyright © 2014-20 EstateExec