The Probate Process is Much Easier for Small Estates

I am frequently asked to assist clients with the probate of estates for deceased family members who had few assets or where most assets were transferred by operation of law. These clients have heard that filing fees, attorneys fees and significant delays are common when dealing with the probate court, known as the Surrogate’s Court.  They are correct. But, for estates with non-real estate assets of $50,000 or less, Article 13 of the Surrogate’s Court Procedure Act provides a less expensive and more streamlined process for “small estates”. Up until recently, this process was only available for estates valued under $30,000.  However, effective November 25, 2019 the threshold was increased from $30,000 to $50,000. 

A small estate proceeding, or “voluntary administration,” is an expedited proceeding for decedents with less than $50,000 of personal property, including cash, bank accounts, investments, and other tangible property. It does not matter if the decedent had a Will or not.  The person appointed to administer the estate is called the Voluntary Administrator rather than Executor or Administrator.  While filing fees for most estates may run from several hundred to several thousand dollars, the filing fee for a small estate proceeding is $1.  

The $50,000 threshold is calculated on the gross estate before deducting funeral expenses and administrative costs.  To be eligible, estate assets must be personal property only.  If the decedent died owning real property, including a house, land, or condominium, a small estate proceeding is not available.  Property transferred by operation of law does not need to be included in the estate.  Property transferred by operation of law includes: trust property, joint accounts, life Insurance, IRAs, TOD, POD, and other accounts with named beneficiaries other than the estate itself.  Therefore, if someone died with $1,000,000 in a trust, owning a $500,000 house as a joint tenant with a surviving spouse, and named beneficiaries on all their investment and bank accounts other than one containing $25,000, their heir would be able to file a small estate proceeding.

If there is a possibility of a wrongful death action or other lawsuit in the future, a small estate proceeding is not appropriate.  In that case, a probate or administration proceeding should be filed instead.  The Court will not grant the Voluntary Administrator the power to prosecute a lawsuit if there is a chance of recovering an amount of money that would exceed the $50,000 threshold.

To file a small estate proceeding in New York, the individual seeking appointment from the Court will file an affidavit and the death certificate of the decedent.  If there is a Will, that will be filed as well.  Additional documents may be necessary depending upon each situation.

Although you can certainly file a small estate proceeding without an attorney, most probate attorneys will charge a small flat fee to file for you, avoiding needless delays.  Contact my office if you have questions or need assistance with this process.