Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process.
The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch.
Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills.
Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York process is that:
- The threshold value for New York’s process is $30,000 or less. See NYSCPA section 1301. If the personal property in the estate is worth more than that, then you can’t do the Small Estate process. In California, the analogous threshold is $150,000. See California Probate Code section 13100.
- Not included in the $30,000, however, is a bunch of stuff listed under Section 5-3.1 of New York Estates Powers and Trust Law that might, for instance, go to the decedent’s immediate family. Some of this stuff can be substantial, such as up to $25,000 of money or cash equivalents. See Section 5-3.1(a)(6) of New York Estates Powers and Trust Law.
- Like in California, the New York Small Estate Affidavit Process cannot be used to transfer title to real property. See NYSCPA section 1302.
- There is no waiting period in the New York process. See NYSCPA section 1304. To contrast, California’s process requires a waiting period of 40 days from the time the decedent passes. See California Probate Code section 13101(a)(3).
California has special language for it’s affidavit in California Probate Code section 13101. New York has a standard form for it’s affidavit also, but it’s not pre-printed — in that you can’t just download it, fill in the blanks, and go. The NY Courts website has a wizard to help with the affidavit. It’s limited to pro bono attorneys and pro pers only, though.
As always, this post was meant to summarize a narrow point of law and was not meant to comprehensively address every person’s situation. If you have a topic or concern that I did not go over, consider finding a lawyer in your area to discuss it with face-to-face. Again, I don’t take cases in New York because I don’t have an office in New York state, but if you need a referral, feel free to get in touch and I’ll see if I can help.
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