Small estate affidavit in New York: who can use it and how

One person files a short sworn affidavit with the Surrogate's Court and becomes the 'voluntary administrator'. The court gives a short certificate that lets that person collect the person's money and belongings, pay the bills and give the rest to the people who inherit. No judge's order or hearing is needed.

Limit

Up to $50,000 Counted at full value, without subtracting debts.

The person's personal property can have a gross value of $50,000 or less, not counting the family exemption items set aside for a surviving spouse or children under 21.

What counts

The gross value of the person's personal property (money, accounts, cars, belongings), not counting the items set aside for a surviving spouse or children under 21 under EPTL 5-3.1(a). Real estate is not counted. Debts are not subtracted.

Waiting period

There is no waiting period. The affidavit can be filed any time after the death.

Who can use it

In order of priority. With no will: the surviving adult spouse; then (if none, or the spouse renounces) an adult child or grandchild, parent, brother or sister, niece or nephew, or aunt or uncle; then a guardian, committee or conservator of a distributee; then the county's chief fiscal officer (or public administrator). With a will: the named executor or alternate executor, after filing the will with the Surrogate's Court; if they renounce or do not file within 30 days after the will is filed, a person who could ask for letters of administration with the will annexed. Only one of these people can serve.

Court or where to file

Surrogate's Court of the county where the person lived. If the person did not live in New York, the county where the personal property is.

Notary

It is a sworn affidavit on the official form. Making a false affidavit is perjury.

Papers to attach

• Certified copy of the death certificate
• The original will, if there is one (it is filed with the Surrogate's Court)
• List of the person's personal property and its value, and of the people who inherit

Steps

1. Check that you are the person with the right to act and that the personal property is $50,000 or less.
2. Fill in the small estate affidavit and file it, with a certified death certificate, with the clerk of the Surrogate's Court.
3. The clerk files it and mails a notice to the other heirs and beneficiaries.
4. Get a short certificate from the clerk and give it to each bank or company holding the person's property.
5. Put all money you collect into an estate bank account in New York in the estate's name.
6. Pay the expenses, reasonable funeral costs and debts in the order the law sets, then give the rest to the people who inherit.
7. File a statement with the court listing everything collected and paid, with receipts or cancelled checks.

Fee

The statute sets a $1 fee for filing the affidavit (SCPA 1304(4)). There is no fee for filing the final account statement (SCPA 1307(2)). Certified copies and certificates may cost extra; ask the clerk.

Debts and responsibility

The voluntary administrator must answer to creditors, heirs, beneficiaries and any executor or administrator appointed later, the same way any estate fiduciary does. Anyone who knowingly makes a false affidavit to get the property can be prosecuted for perjury. The voluntary administrator is not paid for this work.

What the bank or holder must do

When the voluntary administrator gives the court's short certificate and a receipt (and surrenders any ownership document, such as a passbook), the bank or other holder is fully released for what it pays or delivers. If the holder refuses, the voluntary administrator may sue to recover the property, as long as the claim plus the rest of the estate is within the $50,000 limit; a certified copy of the affidavit is proof of the facts in it.

Forms

• Small estate (voluntary administration) forms, NY Unified Court System Surrogate's Court forms

Law: N.Y. Surr. Ct. Proc. Act secs. 1301-1312

Source: Official page