By Kathleen G. Moriarty, Peters & Moriarty, Attorneys and Counselors of Law
Legal Matters is a regular column intended to address general legal concerns. Since every client walks in the door with a different set of circumstances, you should not rely on this column to provide specific legal advice. If you are in need of specific legal advice, please consult with an attorney; he or she will provide advice that is unique and tailored to your legal needs.
I often hear the question: “I’m the executor of my father’s estate, but he didn’t have anything … do we really have to go through probate?” The answer is “probably not” — at least not in the formal sense. The same answer applies if the decedent did not have a will.
New York established a Small Estate program to facilitate the distribution of decedents’ assets. It is essentially the Surrogate’s Court version of Small Claims Court. An estate may be probated as a Small Estate if the decedent (a) died after January 1, 2009; (b) had $30,000 or less in personal property; and (c) either didn’t own real property or owned it jointly (as joint tenants or tenants by the entirety, with rights of survivorship). To clarify, if the decedent owned real property only in her name only or as tenants in common with another person, the estate must go through full probate.
If the decedent had a will, the named executor has the first right to act as voluntary administrator. If no will exists, the spouse of the decedent, if any, has the first right to act, then adult children, and so forth as set out by statute. To open the estate, the person entitled to act must file a Small Estate Affidavit and an original death certificate with Surrogate’s Court in the county of the decedent’s residence. The filing fee for Small Estate Affidavits is $1.00. Although Surrogate’s Court reviews the affidavits, there is no formal notice requirement to beneficiaries or persons entitled to take under New York State law (if no will exists). Certificates of Voluntary Administration are usually issued by Surrogate’s Court within a few days of filing the Affidavit.
The voluntary administrator is then responsible for collecting the decedent’s assets and using those assets to pay debts. The balance is distributed to the beneficiaries of the will or to distributees under New York’s laws of intestacy. Once the estate is distributed, the voluntary administrator must file a Report & Account with the Surrogate’s Court.
The Small Estate Affidavit and Report & Account are standard forms that are easily found on-line or obtained from Surrogate’s Court. Although an attorney is not necessary, most attorneys are happy to answer a quick question to point clients in the right direction.