Written by: Stephen J. Corell, paralegal

When your loved one passes away, navigating the probate process can be a messy endeavor, and depending on the size of your estate, it can take a long time. If your loved one’s estate consisted of enough assets, there are extra forms to be filed, bond requirements, and a long process to go through to resolve the distribution of their assets. However, if your loved one’s estate consisted of less than $50,000.00 worth of assets, it is considered a “Small Estate”. The cut-off used to be $30,000.00, but was recently increased to $50,000.00. If your loved one had an estate of this size, the process is simpler than probating your average estate and is formally called a “voluntary administration.”

The first thing to note here, before understanding how to go through the process of voluntary administration, is exactly how this $50,000.00 limit is calculated. It is not based on real property, like a house or land, but strictly on personal property. The statute states that a small estate is the estate of someone who dies “leaving personal property having a gross value of $50,000 or less exclusive of property required to be set off under EPTL 5-3.1 (a) (1), (2), (3), (4) and (5).” In short, this counts everything your loved one owned, excluding a number of housekeeping items, religious books or family memorabilia, animals, a car valued at less than $25,000.00, and various other household items.

There are a few other factors to note as well, that may cause your loved one’s estate not to qualify as a small estate. Was the death of your loved one potentially the subject of a wrongful death lawsuit? Did your loved one own real property in their name alone? Or was it held jointly with someone else?

The answers to these questions are important in determining your next steps, but this is the first and most important step in determining how to proceed, and as such, it is important to hire an attorney who can help analyze the value of your loved one’s estate, walk you through the exceptions, and help you determine the type of estate your loved one left you with. Lawyers can be expensive but getting a legal expert can save you money in the long run if you make a proper determination of value and procedure at the outset. The Law Firm of Aaron Gavenda has experience with small estates and we can help you with this first step. We can also help you with the next steps. What are those next steps?

Luckily, small estates—unlike large estates—do not need a bond to be posted, so the next step is to file a “Small Estate Affidavit” along with the will—if there was one—and a copy of the death certificate of your loved one. If there was a will, the executor is the one who should sign and file the small estate affidavit. If there was no will, generally the closest living relative should file it. This does not mean, however, that the filing is limited to that person. Anyone with a right to file the estate paperwork can renounce that right. By doing so, they are not giving up their right to their share in the estate proceeds but are simply stating  that they do not want the responsibility of piloting the ship, so to speak. This happens often. When a loved one dies, some people take comfort in staying busy, going through the legal process themselves, and getting their loved one’s affairs in order. It can be therapeutic for some. Others would prefer not to do so and find it stressful to walk through the distribution of their loved one’s possessions. Both are valid ways of doing it, but it needs to be done either way.

Many times, relatives will ask their lawyer to administer their loved one’s estate. While this is common and valid, it does come with a small amount of extra paperwork and requires various people to sign off on it. Initially, all surviving relatives will need to sign off on it by renouncing their rights to administer the estate, as that right passes to any surviving spouses, then children, then parents. If all surviving relatives sign off on it, the right will pass to the “chief fiscal officer of the county except in those counties in which a public administrator has been appointed.” If you are local to Monroe County, this would be the Monroe County Public Administrator, who would need to be notified and agree to it, which will likely require a Court date set by the sending of a citation. Additionally, the lawyer will need to sign a supplemental document affirming whether they will also be representing the estate, and that they are a lawyer seeking to become a fiduciary of the estate in addition to their representation. This is something to discuss with your lawyer and adds complexity to the matter, but it can sometimes be the best thing to do. If you do not yet have a lawyer, the Law Firm of Aaron Gavenda has experience in administering small estates and can help you determine what is right for you.

In summary, when your loved one passes away, it is a difficult time and the process of tying up your loved one’s affairs can be messy and complicated, but it doesn’t always have to be. If you have questions about the property your loved one left behind and want to know more, or if you are looking for someone to walk you through the entire process, the Law Firm of Aaron Gavenda can help you. Give us a call, we’re here to help.

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