Wills and Estates – Small Estates – New York
Related New York Legal Forms
Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
New York Summary:
Under New York statute, where as estate is valued at not more than $30,000, an interested party may, at any time after the death of the decedent, file a petition to become a voluntary administrator of the estate. New York law imposes several responsibilities on a voluntary administrator. Please see below statutes.
New York Requirements:
New York requirements are set forth in the statutes below.
Surrogate’s Court Procedure
ARTICLE 13 SETTLEMENT OF SMALL ESTATES WITHOUT COURT ADMINISTRATION
§ 1301 Surr. Ct. Proc. Act. Definitions
In this article:
1. A small estate is the estate of a domiciliary or a non-domiciliary who dies leaving personal property having a gross value of $30,000 or less exclusive of property required to be set off under EPTL 5-3.1 (a) (1), (2), (3), (4) and (5).
2. A voluntary administrator is a person who qualifies and undertakes to settle the estate of the decedent without the formality of court administration as hereinafter provided.
§ 1303 Surr. Ct. Proc. Act.
Persons who may become a voluntary administrator.
(a) If the deceased dies intestate, the right to act as a voluntary administrator is hereby given first to the surviving adult spouse, if any, of the decedent and if there be none or if the spouse renounce, then in order to a competent adult who is a child or grandchild, parent, brother or sister, niece or nephew or aunt or uncle of the decedent, or if there be no such person who will act, then to the guardian of the property of an infant, the committee of the property of any incompetent person or the conservator of the property of a conservatee who is a distributee and if none of the foregoing named persons will act or if there are no known distributees within the categories listed above, then to the chief fiscal officer of the county except in those counties in which a public administrator has been appointed under articles eleven and twelve of this act. After the surviving spouse, the first distributee within the class of persons entitled or if no distributee will act or there are no known distributees within the class of persons entitled, then the chief fiscal officer of the county as above who makes and files the required affidavit, is authorized to act as voluntary administrator, or as successor voluntary administrator in the event of the death or resignation of the voluntary administrator before the completion of the settlement of the estate.
(b) If the deceased dies testate, the named executor or alternate executor shall have the first right to act as voluntary administrator, upon filing the last will and testament with the surrogate’s court. If the named executor or alternate executor renounces or fails to qualify by filing the required affidavit within thirty days after the last will and testament has been filed in the surrogate’s court, then any adult person who would be entitled to petition for letters of administration with will annexed under section 1418 of this chapter may file the required affidavit and have the right to act as voluntary administrator.
(c) No person other than one hereinbefore mentioned can become a voluntary administrator.
§ 1304 Surr. Ct. Proc. Act. Summary procedure.
1. When available. No waiting period after the death of the decedent is required.
The procedure prescribed in this article may be used after the decedent’s death.
2. Bond. The voluntary administrator need not give a bond.
3. Affidavit. A person may qualify as a voluntary administrator by making and filing with the clerk of the court of the decedent’s domicile, or in the case of a non-domiciliary, of the county in which his personal property is located, an affidavit in the form provided by the Official Forms appended to this act, and also a certified copy of the death certificate of the decedent.
4. Record. The clerk shall file the affidavit and assign it a number. The clerk shall enter each such proceeding in the records and indexes of the court. The clerk shall charge a fee of $1 for filing the affidavit. No order of the court or other proceeding shall be necessary. The clerk shall mail to each distributee who has not renounced his or her right to act and to each beneficiary mentioned in the affidavit other than the affiant, a letter or postcard notice of the proceeding under this article. The giving of such notice is not jurisdictional.
5. Furnishing evidence of qualification and authority. A short certificate of the court showing the filing by the voluntary administrator of the required affidavit, shall evidence his, her or its qualification and authority to act. The clerk may indicate on the certificate that it is valid only for a transfer or transaction as specified thereon. The voluntary administrator shall deliver a certificate to each debtor, transfer agent, safe deposit company, bank, trust company or other person holding or having custody, possession or control of any personal property of the decedent which the voluntary administrator seeks to reduce to possession or otherwise affect the title thereof.
§ 1305 Surr. Ct. Proc. Act. Discharge of debtor, transfer agent, safe deposit company, bank, trust company or other person.
The delivery by a voluntary administrator to a debtor, transfer agent, safe deposit company, bank, trust company or other person holding or having custody or possession or control of any personal property of the decedent, of the short form certificate of the court, the receipt of the administrator, and the surrender of any evidentiary document, shall constitute a complete release and discharge for any payment of money or delivery of personal property made pursuant to the certificate, without such person being required to see to the application thereof and with the same effect as if made to any duly appointed fiduciary.
§ 1306 Surr. Ct. Proc. Act. Powers.
1. If any person to whom a certificate and receipt are presented by a voluntary administrator refuses to pay, deliver, transfer or issue to the voluntary administrator any personal property of the decedent, the voluntary administrator may maintain an action or proceeding to recover or compel the delivery of the property, or to enforce a contractual or quasi contractual claim owned by decedent, provided the amount claimed, together with all other assets of the estate to be administered under this article, does not exceed the monetary amount defined as a small estate pursuant to subdivision one of section 1301 of this article. In such action or proceeding, a certified copy of the affidavit shall be prima facie proof of the facts therein stated.
2. A voluntary administrator may sell for its reasonable value in cash any personal property of the decedent coming into the voluntary administrator’s possession.
3. For the purpose of this article, a voluntary administrator shall be deemed to be the fiduciary of the estate until another fiduciary is appointed, and except as hereinafter provided, the voluntary administrator shall have the rights, powers and duties with respect to personal property of an administrator duly appointed for the estate. The voluntary administrator shall have no power to enforce a claim for the wrongful death of or a claim for personal injuries to the decedent.
Upon the appointment and qualification of another fiduciary of the estate, the powers of the voluntary administrator shall cease. §
1307 Surr. Ct. Proc. Act. Duties.
A voluntary administrator shall 1. Deposit in an estate bank account to be opened by him in a bank, trust company, savings bank, savings and loan association or federal savings and loan association in this state, credit union or federal credit union in this state all money received. He shall sign all checks drawn on or withdrawals from the account in the name of the estate by himself as voluntary administrator. Without compensation for his services, he shall pay so far as possible out of the decedent’s assets coming into his possession, the necessary expenses of administration, the reasonable funeral expenses of the decedent and the decedent’s debts in the order provided by law. He shall then distribute the balance to the person or persons entitled and in the amount or amounts provided by EPTL 4-1.1 if decedent died intestate or if a will is filed which is valid on its face, he shall distribute to the persons named in such will, subject to the right of any person affected to contest such will at any time.
2. Account for all personal property of the decedent received and disbursed by him by filing with the clerk of the court a statement of all assets collected and of all payments and distributions made by him and receipts for or cancelled checks evidencing such payments and distributions. No fee shall be charged for the filing of such account.
§ 1308 Surr. Ct. Proc. Act. Liability of voluntary administrator collecting assets.
1. A voluntary administrator shall be answerable and accountable to all persons including creditors and distributees of the decedent, beneficiaries named in the will filed with the affidavit and to any fiduciary thereafter appointed, aggrieved by his administration of the decedent’s estate under this article, in the same manner as now provided by this act concerning a fiduciary.
2. A voluntary administrator or other person who wilfully and knowingly makes a false affidavit in order to obtain personal property of the decedent as provided in this article, is subject to prosecution for perjury and upon conviction shall be punishable as provided by law in relation to such crime.
§ 1309 Surr. Ct. Proc. Act. General provisions.
1. The use of this article in the settlement of a small estate without the formality of court administration is permissive and not mandatory.
2. As a matter of comity a debtor, transfer agent, safe deposit company, bank, trust company or person in this state holding personal property of a non-domiciliary decedent, may recognize a certified copy of an affidavit or of a short certificate of a judge or clerk of a probate court made under a statute of another state, providing for the settlement of small estates without administration, for the purpose of collecting or obtaining possession of an asset of a decedent in his state, provided that debtors, transfer agents, safe deposit companies, banks, trust companies or persons in such other state holding personal property of a domiciliary decedent shall, whether pursuant to statute or otherwise, recognize and pay or transfer his personal property pursuant to a short certificate of the court made under this article.
3. A debtor, transfer agent, safe deposit company, bank, trust company or person of another state, shall not be liable to any person in respect of any payment, transfer or delivery of personal property made to a voluntary administrator pursuant to such short certificate.
4. As used in this section, the word “state” means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.
§ 1310 Surr. Ct. Proc. Act. Payment of certain debts without administration.
1. As used in this section (a) “Debt” means
(i) money or securities payable on account of a deposit in a bank, national bank, trust company, branch of a foreign banking corporation, savings bank, industrial bank, state or federal savings and loan association or state or federal credit union or with a private banker, or funds or securities invested with, held by or deposited with a broker-dealer or with, by or in securities of a management type investment company or trust payable or returnable to, or to the estate of, or to a beneficiary designated by, the depositor or
(ii) money payable by a state or federal savings and loan association or state or federal credit union to, or to the estate of, or to a beneficiary designated by, a member on account of the withdrawal value of his shares or
(iii) money payable by an insurance company or a savings bank authorized to conduct the business of life insurance under an annuity or pure endowment contract or a policy of life, group life, industrial life or accident and health insurance or a contract made by such an insurer, relating to the payment of proceeds or avails thereof, to, or to the estate of, or to a beneficiary designated by, the owner or the person purchasing the annuity or the person insured or the person effecting the insurance or the person effecting the supplemental contract or
(iv) money payable by a public corporation, a state or the federal government or an agency thereof, to, or to the estate of, or to a beneficiary designated by, any natural person or
(v) a pension or retirement or death benefit, profit share, earnings, wages, salary or bonus payable by an employer or by a pension, retirement or profit-sharing plan or system to, or to the estate of, or to a beneficiary designated by, an employee, or
(vi) a balance of money due on an accepted claim or account payable, on account of dividends payable by the superintendent of banks in liquidation of bank assets, to, or to the estate of, or to a beneficiary designated by, a depositor or
(vii) any personal property deposited with a county treasurer by a coroner or county medical examiner pursuant to sections 785 and 786 of the code of criminal procedure, or
(viii) any personal property on deposit with a hospital, nursing home, residential health care facility or out-patient lodge described in section twenty-eight hundred one of the public health law at the time of the death of a decedent that is payable or returnable to the estate of the decedent;
(b) “Debtor” means the person or persons, partnership, corporation, government or government agency by whom a debt defined in this section is to be paid,
(c) “Creditor” means the employee, depositor, member, or other person, to whom, or to whose estate, or to a beneficiary designated by whom, a debt defined in this section is to be paid and shall include any beneficiary validly designated by such a creditor,
(d) A “designation of a beneficiary” means any writing, signed by the creditor and delivered to the debtor purporting to designate the person to whom a debt shall be paid on death of the creditor or any transaction which operates pursuant to statute as such a designation.
2. Upon the death of a creditor, unless otherwise provided by a designation of a beneficiary which is then in effect, it shall be lawful for the debtor forthwith to pay to the surviving spouse of the decedent not more than thirty thousand dollars of the debt, upon an affidavit made by the spouse showing that the payment and all other payments received by the spouse under this subdivision do not in the aggregate exceed thirty thousand dollars.
3. Not less than thirty days after the death of a creditor, unless otherwise provided by a designation of a beneficiary which is then in effect, it shall be lawful for the debtor to pay not more than fifteen thousand dollars of the debt to (a) the surviving spouse,
(b) one or more of the children eighteen years of age or older,
(c) the father or mother,
(d) the brother or sister,
(e) the niece or nephew of the decedent, preference being given in the order named if request for payment shall have been made by more than one such person,
(f) a creditor of the decedent or to a person who has paid or incurred the funeral expense of the decedent, upon the request of the surviving spouse or of one of such relatives. Payment under this subdivision may be made upon an affidavit by the surviving spouse or relative to whom or at whose request the payment is made, showing
(i) the date of the death of the decedent,
(ii) the relationship of the affiant to the decedent,
(iii) that no fiduciary has qualified or been appointed,
(iv) the names and addresses of the persons entitled to and who will receive the money paid, and
(v) that such payment and all other payments made under this section by all debtors, known to the affiant, after diligent inquiry do not in the aggregate exceed fifteen thousand dollars. This subdivision does not limit the right of a debtor to make payment to a surviving spouse within less than thirty days after the death of the creditor as provided in subdivision two.
4. Not less than 6 months after the death of a creditor, unless otherwise provided by a designation of a beneficiary which is then in effect, it shall be lawful for the debtor to pay a debt which does not exceed $5,000, or any part of such debt, to a distributee or, to the extent that the funds are not exempt from claims of creditors, to a creditor or to a person who has paid or incurred the funeral expenses upon an affidavit made by the person paid showing (a) the date of the death of the decedent,
(b) that no fiduciary has qualified or been appointed,
(c) that the decedent was not survived by a spouse or minor child,
(d) that the affiant is entitled to the payment, and
(e) that such payment and all other payments made under this section by all debtors, known to the affiant, after diligent inquiry, do not in the aggregate exceed $5,000.
5. A payment made in good faith under this section shall be a complete discharge to the debtor to the extent of the payment, even though the affidavit on which payment is made be false, and even though payment pursuant to subdivision 3 was not made in the order of preference indicated in that subdivision, provided only that the creditor be dead and that the required number of days elapse between death and payment and, in the case of a payment under subdivision 2 or subdivision 3 that the affiant in fact bear the stated relationship to the decedent and in the case of a payment under subdivision 4 that the affiant be in fact a distributee or creditor or have paid or incurred the funeral expenses.
6. Any person receiving payment pursuant to this section is accountable therefor to the fiduciary of the decedent if one be appointed or to the public administrator of the county having authority to take possession of the money or property constituting the debt except that a surviving spouse entitled to have property set aside to him or to her pursuant to EPTL 5-3.1 need not account for such payments to the extent of the exemption provided therein, and the amount so received shall be credited to such exemption.
7. Nothing in this section shall deprive any person of any right which he would otherwise have to receive payment of a debt, except as against a debtor who has made a payment which is a discharge under subdivision 5, nor shall anything in this section deprive any debtor of any right to make or refuse payment which it would otherwise have. This section does not limit article 26 of the tax law.
8. It shall be lawful for the debtor to pay a debt which does not exceed five thousand dollars or any part of such debt, under subdivision four of this section, to the department of social services or a social services district where the debt is money payable on account of a deposit with the debtor for the personal needs of the deceased creditor while residing in a medical institution or other facility, or otherwise, and the deceased creditor is indebted to the department or district on account of medical assistance furnished to or on behalf of the deceased creditor.
9. This section applies only to creditors who die on or after September 1, 1952
. § 1311 Surr. Ct. Proc. Act. Administration of funds payable under social security act of the United States, the unemployment insurance law and the workmen’s compensation law.
1. In virtue of his office and without issuance of letters each public administrator, and in counties having no public administrator, each county treasurer is authorized to receive from the social security board of the United States or the unemployment insurance fund of the state or from any person making payment under the workmen’s compensation law, for application according to law in the payment of administration expenses, funeral expenses and for distribution to the distributees of the deceased any moneys not exceeding $500 payable pursuant to title II of the social security act of the United States or pursuant to the unemployment insurance law, or pursuant to the workmen’s compensation law, as the case may be, to the estate of any person dying intestate a resident of his county.
2. The moneys so received by the public administrator or county treasurer shall be applicable to the payment of the expenses of administration, to the payment of reasonable funeral expenses not otherwise provided for and any balance may be distributed without prior accounting decree to the persons entitled thereto as distributees of the decedent.
3. In the case of an infant or incompetent his share, if not exceeding $1,000, may be paid for the use and benefit of the infant to a parent or to some competent person with whom the infant or incompetent resides or who has an interest in his welfare.
4. If the sum payable to a patient in an institution in the state department of mental hygiene is not in excess of the amount which the director of the institution is authorized to receive pursuant to section 29.23 of the mental hygiene law, it may be paid to such director for use as provided in that section.