What is probate?
Probate is a legal procedure conducted by a probate court before a decedent’s estate can be disbursed. If there is a will, the court checks the will for validity before its instructions can be carried out by the executor. Even when there’s no will, the estate may still be probated.
Note that probate in NYC must take place in the probate court located in the county where the decedent lived and/or owned property at the time of their death.
Types of Probate in NYC
There is only one type of Probate in NYC. However, if the decedent’s probatable estate consisting only of personal property does not value above $30,000, a simple process known as small estate administration is done instead of regular probate.
In effect, only an estate that’s worth over $30,000 can be probated in New York. Estates below this value are “administered” not probated.
Small estate proceeding in NYC
Small estate administration (or small estate proceeding) in New York is a simple legal process for administering an estate worth less than $30,000. It is much simpler and concludes faster than regular probate, taking only a few months.
So if your loved one passed away leaving personal property that does not total up to $30,000, you wouldn’t have to worry about probate.
SCPA §1301 and §1303 provide that if an individual dies with probate assets (assets owned in the name of the decedent alone) consisting only of personal property worth not more than $30,000, a small estate proceeding will be conducted for the personal assets to be distributed.
Small estate administration is also known as voluntary administration.
How small estate proceeding works in NYC
Let’s assume John Doe has $20,000 in his bank account and passes away. He leaves a will, instructing that the money should be given to his son Mike in the event of his death. He also names Mike as his executor.
When Joe dies and they find out his probate assets does not exceed $30,000, probate cannot be conducted. And the bank cannot just hand over the money to Mike.
So what does Mike do?
Mike files a petition to the court, asking them to authorize his as a voluntary administrator, not an executor this time around, hence, the name “voluntary administration.”
With this court authorization, Mike can then collect the assets and distribute them.
The small estate proceeding is much cheaper and faster than the regular probate of NYC.
Probate assets are assets held in the name of the decedent alone. These are the only assets that can be distributed through probate or small estate proceeding. For example your bank account or car owned in your name without any beneficiary designation.
The following assets will not go through the court:
- Real property held jointly (probably by a husband and wife. On the death of one spouse, the property goes into the direct ownership of the surviving spouse without any court involvement.
- Assets in a trust
- Transfer-on-death bank account having beneficiary designation
- Life insurance proceeds
- Retirement accounts such as 401(k)
If a New York resident has any or all of the above and then has probate assets worth less than $30,000, a small estate proceeding will be done instead of probate. For example, John has $100,000 in his living trust, a home jointly held with his wife, and $25,000 in his bank account. The $25,000 will pass through the small estate proceeding.
Commencing a small estate proceeding in NYC
To commence a small estate administration in New York, the executor named in a will (or other relevant interested party) should file an Affidavit in Relation to Settlement of Estate Under Article 13, the original last will and death certificate of the deceased, a Report and Account in Settlement of Estate, and
$1 will be paid as filing fee in the Surrogate’s Count of the county where the deceased domiciled at the time of their death.
The individual must also include their contact information and the personal assets of the deceased they wish to administer.
The court then issues certificates for each asset in the estate to the voluntary administrator. In the case of Mike, he can then take the certificate of his father’s bank account to the bank, and they will be obliged to grant him access to the funds.
Whether probate or small estate proceeding in NYC, there are legal procedures involved. If you have any questions or run into jams, our probate attorneys are ready to assist you. Our estate planning attorneys can also help you prevent court intervention entirely by keeping all your assets as non-probate assets.
Call us today for expert assistance.