When is it Necessary to Open an Estate?

By Melissa A. Pezzino, Esq.

When a family member passes, their relatives are often unsure of what the next steps are in the process of distributing their assets to beneficiaries.  Most believe that it is necessary to probate the individual’s Will, if there is one.  However, in many circumstances, a full probate proceeding is not necessary.  In those cases, family members can save time and costs by administering the individual’s assets without offering the Will for probate.

Probate versus Non-Probate Assets

Before making a determination with how to proceed after someone passes away, the first step in each situation will be to determine the nature and value of the assets the individual owned at the time of death.  Non-Probate assets are assets that pass outside of the Will.  These include assets which were jointly owned with another individual, and assets such as “POD” (payable on death), “TOD” (transfer on death), trust accounts, or life insurance policies, which have named beneficiaries designated on the account.  Non-Probate assets pass directly to the joint owner or the named beneficiary on the account without the need to probate the Will.  They are usually transferred by presenting the death certificate to the bank or brokerage firm and filling out the necessary paperwork to transfer the account to the named beneficiary.

Probate assets are assets that are titled in the individual’s name alone.  In those circumstances, if the total value of the Probate assets is over $50,000, or if there is real estate in the individual’s name alone, it will be necessary to probate the Will in Surrogate’s Court.  If the individual did not have a Will, there is a similar proceeding to use, referred to as Administration.

Voluntary Administration

If the individual owned assets, other than real estate, in his name alone, but the total value of those assets is under $50,000, Surrogate’s Court has a simpler procedure that can be used, other than a full probate proceeding.  In this situation, the Executor named in the Will, or a relative authorized by New York State law, can file a document referred to as a “small estate affidavit” with Surrogate’s Court, which will allow the transfer of assets.

Affidavits without Surrogate’s Court Administration

In other circumstances, if the individual’s assets were valued under a certain amount, it is possible to collect those assets with an Affidavit, presented directly to the bank or brokerage firm.  For example, if the individual held an account at a bank, and the account was valued at less than $30,000, the surviving spouse can present an Affidavit to the bank with a copy of the death certificate and collect the account.  If the value of the account were under $15,000, New York law allows other relatives to use an Affidavit to collect the account.

Motor Vehicle

If an individual passes leaving a motor vehicle worth less than $25,000, in some circumstances it is possible to transfer the ownership of the vehicle using a form at the Department of Motor Vehicles.

When a family member passes, it is important to review the individual’s paperwork to ascertain the assets owned at the date of death, as well as their relative values, and provide this information to an estate planning attorney.  Hurwitz Fine’s Estate Planning team provides guidance on how to proceed in the simplest, most cost-effective way possible, and will guide you through the process so that assets are transferred efficiently and in compliance with the relevant laws. Please reach out to any member of our team with for help getting started.

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