Settling Small Estates (NY)
In New York, full probate is not required for "small" estates: an executor can instead request Voluntary Administration, saving considerable effort and cost. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Definition
In NY, an estate qualifies as "small" if the qualified personal estate is <$50,000 (value assets as of the date of death; ignore real estate and 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 Article 13 for the related legal statutes.
Voluntary Administration Process
If the estate qualifies as "small", you can bypass full probate and use voluntary administration to settle the estate:
- File an Affidavit of Voluntary Administration (Form SE-3A) with the local Surrogate's Court (see below)
- The court will notify certain parties, then create a certificate giving you authority to act as executor
- You can use this certificate to obtain possession of estate assets from their current custodians
- Settle the estate in the normal manner (pay all debts, distribute assets)
- File a Report and Account Form (Form SE-1D) with the court showing what you collected and disbursed
See When Someone Dies in NY for helpful information, and you can find additional NY small estate forms online (not normally needed).
Affidavit of Voluntary Administration
When you fill out the NY affidavit Form SE-3A, you will have to include:
- Name and address of decedent
- Name and address of all close relatives
- List of all assets and unpaid debts
Get the affidavit notarized, then file it with the local Surrogate's Court (see below), attaching:
- Certified copy of the death certificate
- Copy of the will (if any)
See official NY Voluntary Administration Checklist.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in NY, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to NY Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow NY probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
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 the above method (or full probate) for handling small estates in NY.
Court
In New York, the County Surrogate's Court handles wills and estate proceedings (including probate). If you are using EstateExec, you can set your court on the Decedent Tab.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in NY.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in NY.
Finally, in case you're interested, details about handling small estates in other states can be found here: