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Not all estates require a probate or full administration proceeding in New York State. A small estate proceeding, also known as a Voluntary Administration, is a simplified聽聽procedure. Voluntary Administration is available if the decedent died with or without a Will.
What Estates Qualify for a Small Estate Proceeding?
鲍苍诲别谤听, Voluntary Administration is available if the decedent passed away with $50,000 or less in personal property. Personal property includes cars, cash, stocks 鈥� anything but real estate. The Voluntary Administration proceeding is not an option when the decedent owned real property solely in their own name.
Voluntary Administration is not only for decedents with minimal assets.聽 Sometimes only certain assets were owned by the decedent in their sole name.聽 This happens often with married couples with joint bank accounts or who own real estate with rights of survivorship.聽 A decedent may have named beneficiaries on most of their accounts. In such cases only some property needs to pass through Surrogate鈥檚 Court. Other times a decedent conveyed most鈥揵ut not all- of their property to a trust. If the assets left outside the trust are less than $50,000, a Voluntary Administration is available.
How Do I file a Voluntary Administration?
The small estate proceeding is initiated by filing of an 鈥淎ffidavit of Voluntary Administration.鈥� The Petitioner is either the nominated Executor in the decedent鈥檚 Will or the closest living relative when there is no Will. The Petitioner is asking the Court for the authority to collect the decedent鈥檚 assets, pay off any debts, and distribute the property to those with a legal right to inherit. If there was a Will, the beneficiaries named in the Will inherit. If there was no Will, then the estate passes under the聽.
The Voluntary Administration Proceeding is less complex than a probate or full administration proceeding. Consent and Waiver is not required from the decedent鈥檚 distributees (heirs who will inherit under the estate). The Court only provides the distributees with notice that the proceeding was filed. This avoids the expense of costly litigation over the appointment of a fiduciary.
Drawbacks of the Voluntary Administration
The Voluntary Administration Proceeding has some drawbacks. The appointed Administrator only has the authority to collect the specific assets listed on the Affidavit of Voluntary Administration. Such broad authority is only available in a full probate or administration proceeding. The Administrator does not have the broad authority to collect and distribute any additional assets. If the Administrator finds assets not listed on the initial Affidavit, they have to go back to the court. Further, if the assets exceed $50,000, the Administrator must convert the proceeding to a full probate or Administration. For this reason, when there is uncertainty about the assets, it may be wise to proceed with a full probate or administration proceeding.
A small estate proceeding costs only $1 to file. While the Voluntary Administration Proceeding is simple and inexpensive, mistakes can be costly. It is always a good idea to consult with an experienced聽Trust and Estates attorney聽to ensure that a small estate proceeding is the best way to proceed.
