Law Offices of Roman Aminov
New York’s spousal right of election laws- Clarified
NY has laws that outline what and what not a person is entitled to in terms of his spouse's relation to the estate. Did you ever think of disinheriting a loved one? Perhaps you found out someone cut you off the will and you do not know what to do. Roman Aminov will share his expertise with us again and enlighten us with everything we need to know about disinheriting a spouse & NY's right of election. Roman has wrote award winning publications all over the internet and let's just say "he's done it again." Click on the link above and read this masterpiece. We promise you that you'll become an expert at spousal right of election laws outlined in NY's EPTL 5-1.1A.
Opening Safe Deposit Box After Death: The NY Law
How to Deal with a Small Estate in New York
When a person dies in New York, it’s customary for the decedent’s estate to be handled through a probate process. However, an estate doesn’t always have to go through probate. If the estate value doesn’t reach a certain threshold, for instance, it’s considered a “small estate.” In New York, if the deceased left personal property worth less than $30,000, that means the assets can be distributed directly to the heirs and beneficiaries without the involvement of a formal probate court.
When dealing with personal property, it doesn’t matter if the decedent left a Last Will and Testament or not. What matters is the dollar value of the assets left. The good news is that if the deceased’s assets fall below New York’s small estate limit ($30,000), the loved ones can use a more straightforward, shorter probate procedure popularly known as summary probate.
There are some cases whereby the deceased’s estate can be ruled not to be a “small estate” even if it’s worth less than $30,000. If there’s a potential for wrongful death or other forms of legal suits being brought up in the future, it is best to file for an administrative proceeding instead.
If the deceased owned exclusively (not jointly) a real estate property (land, house, building, etc.), then it’s not considered to be a small estate. If that is the case and there is a will, the named estate representative should file for a probate proceeding within a statutory period. Otherwise, if there is no will, the court will appoint an executor. It is worth noting, however, that if the deceased owned property valued less than $30,000 jointly with someone else, then it’s considered as per New York law to be a small estate.
Filing for a Small Estate
Again, with summary probate, the loved ones can avoid probate court proceedings altogether. Instead, the executor will have to fill out a simple form and hold off for a given period of time before distributing the deceased’s assets. There are two instances you need to think about when filing for a small estate in New York.
It the decedent had drafted up a will with a lawyer, the nominated person should file a certified copy of the death certificate, the original Last Will & Testament, small estate affidavit petition and a raft of other relevant documents. When there’s no Will, the court can appoint a representative of the estate. The filing fee in New York is $1.
How to Determine if the Deceased’s Estate is a “Small Estate”
Start off by making a list (perhaps a spreadsheet) of all the decedent’s assets. Remember not all assets owned by the decedent counts toward the estate value. Retirement benefits, 401K, joint tenancy, POD and TOD accounts, beneficiary designations, brokerage accounts, and real estate transferred by TOD deed, for instance, doesn’t count when calculating the small estate limit. Moreover, if the deceased had a life insurance policy with an express beneficiary named, the proceeds will also not count.
Distribution of Assets of a Small Estate
Once the deceased estate has been determined to be below New York small estate limit and there’s a Will, the representative will fill out a simple form and wait out. As soon as the statutory time elapses, the executor can distribute the decedent asset to the rightful heirs and beneficiaries.
If the deceased left no Will, the executor would have to file a petition through expedited summary probate. It turns out, New York’s intestacy law doesn’t allow for the use of affidavit procedure. The summary probate helps appoint an executor who will distribute the assets to the right parties.