New York Estate Planning & Elder Law Blog
In New York, not every estate needs to pass through the probate process in Surrogate’s Court. The law gives this exemption to so-called “small estates” valued under a certain number and provider the executor to the estate handles the process correctly. Although small estates are allowed to pass through a more simplified probate process, executors will still need to perform some of the same duties as if he or she were overseeing a larger estate.
Estates with real property valued less than $30,000 are considered small estates and can avoid the lengthy and expensive formal probate process for larger estates. Even though the asset threshold for small estates may appear quite low, there are still circumstances where even large estates could pass through the small estate probate process. This is because not all personal property needs to be counted towards the $30,000 small estate threshold, thus allowing the more simplified probate process.
Under New York probate laws, only property owned exclusively by the deceased counts towards the small estate probate threshold. What his means is that jointly owned assets like homes, vehicles, and family businesses in two people’s names will not count towards the $30,000 limit. Additionally, only real property like life insurance, an IRA and similar assets with a named beneficiary do not need to be counted as these pass automatically to a beneficiary upon the passing of the deceased policyholder.
In order to prepare a small estate for an administrative hearing to avoid probate, the named executor of the estate needs to file a copy of the last will and testament, a copy of the death certificate, and a small estate affidavit petition with the appropriate Surrogate’s Court. Additionally, the deceased’s heirs, know as the distributions, need to be listed on the petition for probate and served notice, as is required with any other estate going through probate.
After all necessary parties are put on notice, the distributees will need to sign a waiver to allow the estate to pass through probate. Once the court receives all the necessary paperwork, the Surrogate’s Court judge hearing the case will make the determination whether or not the estate is below the $30,000 small estates threshold and allow the executor to distribute the deceased’s assets to the heirs and beneficiaries in accordance with his or her final wishes.