Settling Small Estates (NY)
In New York, full probate is not required for "small" estates: an executor can instead request Voluntary Administration, saving considerable effort and cost. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Definition
In NY, an estate qualifies as "small" if the qualified personal estate is <$50,000 (value assets as of the date of death; ignore real estate and debts).
Assets jointly owned with other people, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions should not be included in this valuation.
NY also provides a family exemption that may exclude up to almost $100,000 of personal property (see NY Personal Property Exemptions).
Note that real property (i.e., real estate) cannot be handled via the small estate process, so if the estate contains real property owned solely by the decedent, you may need to go through probate regardless of overall estate value (see NY SCPA § 1302).
See NY SCPA § 1301.
Voluntary Administration Process
If the estate qualifies as "small", you can bypass full probate and use voluntary administration to settle the estate:
- File an affidavit of voluntary administration (Form SE-3A) with the local Surrogate's Court (there is no mandated waiting period after the death)
- The court will notify certain parties, then create a certificate giving you authority to act as executor
- You can use this certificate obtain possession of estate assets from their current custodians
- Settle the estate in the normal manner (pay all debts, distribute assets)
- File an account report form (Form SE-1D) with the court showing what you collected and disbursed
You can find additional NY small estate forms online (not normally needed).
See NY SCPA Article 13.
Affidavit of Voluntary Administration
You can generate an affidavit for voluntary administration online, or you can fill out the NY affidavit Form SE-3A directly. You will need to include:
- Name and address of decedent
- Name and address of all close relatives
- List of all assets and unpaid debts
File the affidavit with the local Surrogate's Court (see below), and attach:
- Name and address of the decedent
- Certified copy of the death certificate
- Copy of the will (if any)
You will need to get the affidavit notarized before submission.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in NY, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to NY Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow NY probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
No Small Estate Affidavit
Many people ask about using a small estate affidavit without any court involvement, but NY does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in NY.
Court
In New York, there is no filing deadline, and your estate's local Surrogate's Court, a New York City Surrogate's Court or county Surrogate's Court outside New York City, handles wills and estate proceedings (including probate).
See NYCourts Probate website for additional helpful information.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in NY.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in NY.
Finally, in case you're interested, details about handling small estates in other states can be found here: