The Small Estate Proceeding: A Probate Loophole?

Recently, I was helping a couple with planning. Unfortunately, the husband passed away about two weeks ago. After he died, the family realized that he had one bank account that was in his name alone, with about $3,000 in it. They did not realize this before he passed, otherwise they would have taken care of it.              

I met with the family last week to help them figure out how to proceed. I explained to them that when somebody dies, and they own something that is in their name alone, with no beneficiary, then it’s subject to probate.

However, in New York we have something called a voluntary administration proceeding (also known as a “small estate” proceeding). An estate qualifies as a “small estate” if the amount subject to probate is less than $30,000 in total. This is under Article 13 of the Surrogate’s Court Procedure Act.

Small estate proceedings are advantageous in many situations, because:

1. It is a simplified process that generally doesn’t take as long as regular probate.
2. You don’t need the consent of all of the people involved as you would in a typical probate proceeding.

The executor of the will files an affidavit with the court. If there is no will, then a spouse or a child can file the affidavit on behalf of the estate. The court issues certificates so that the “Voluntary Administrator” can collect the assets in question, pay any bills that might be outstanding, and then make distributions, either in accordance with the terms of the will, or in accordance with New York law if there isn’t a will.

Even though a small estate proceeding is simpler than a full probate proceeding, it’s still a good idea to speak to an estate attorney to make sure that it’s the right thing to do. If you have questions or would like to learn more, please contact us.