When to use a Small Estate Affadavit

Full Question:

Can a Small Estate Affadavit be used when property is valued at $80,000.00? What would be used instead?
03/12/2009   |   Category: Power of Att... ยป Real Estate   |   State: New York   |   #15603

Answer:

To qualify for small estate or summary administration, the estate must not be more than $20,000 in value, or $30,000 if filed after January 1, 2009. This amount includes all personal property owned by the decedent, but excludes the value of real property.

If the estate is valued higher than these amounts, the estate will be subject to regular probate procedures, which are initiated in cases where the decedent left a will appointing an executor by filing a petition to probate the estate. If the decedent died without a will, the estate will go through intestate administration, which is initiated by filing a petition for letters of administration. This requests that an administrator be appointed to handle the affairs of the estate.

The following are NY statutes:

§ 1301. 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 $20,000 or less exclusive of property required to be set off under
EPTL 5-3.1 (a) (1), (2), (3), (4) and (5).

* NB Effective until January 1, 2009

* 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).

* NB Effective January 1, 2009

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.

§ 1302. Kinds of property

This article is not applicable to any interest in real property in
this state owned by a decedent, but his owner ship of an interest in
real property shall not prevent the use of this article in administering
his personal property.

§ 1304. 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.