Avoiding full probate in New York state

5 min read

Which estates qualify for simplified probate in New York

  • In New York, estates valued at less than $50,000 are classified as small estates and may be able to bypass the full probate process.

  • The $50,000 probate threshold does not include certain types of assets (known as non-probate assets) such as life insurance policies and jointly held bank accounts.

  • Also not calculated in the $50,000 estate value: assets defined under the "exemption for the benefit of the family" law, which includes varied assets, from farm animals to cars to cash.

  • If you meet the criteria, you can file for small estate administration, also known as a voluntary administration proceeding.

  • With this process, the executor files a small estate affidavit in order distribute the estate’s assets to its beneficiaries.

Full probate is usually something you want to try your best to avoid, or else get over with as soon as possible. Fortunately, smaller estates can often avoid this elaborate process and are subject to a less formal procedure.

Each state’s probate law has its own definition of “small estates.” If your loved one’s estate is in New York, you may be able to bypass the full probate process if the estate’s value meets the New York probate threshold. 

When an estate can bypass full probate

In New York, only estates valued higher than $50,000 need to pass through formal, full probate.

The executor should keep in mind that the $50,000 total does not include all assets. If the asset itself is jointly owned or has a named beneficiary, then it can pass directly to the beneficiary and does not count toward the total value of the estate.

These "non-probate assets" include life insurance policies, IRAs, U.S. savings bonds, and jointly held bank accounts. Discounting exempted items, if the total value of your loved one’s personal property is below $50,000, the good news is you can likely bypass full probate in New York. 

Exemption for benefit of the family

In addition to the above-mentioned non-probate assets (IRAs, savings bonds, etc.), there some specific assets which, under Section 5-3.1 of NY state probate code, bypass probate and thus do not count toward the $50,000 small estate threshold.

This law is called “Exemption for benefit of the family,” and it says that if someone leaves behind a surviving spouse or children under the age of 21, a list of specific items of their property go directly to these beneficiaries—first the spouse, and then, if there is none, the child or children under 21.

Exemptions include everything from farm animals to household items to cash (up to $25,000) or a car (up to $25,000 in value). The full list of these items for “benefit of the family” can be found on the New York State Senate’s webpage. These items must not exceed a certain value, so it’s important to be sure that you know the value of your loved one’s personal property. 

If you’re close to the threshold

Even with the family exemptions mentioned above, if the value of your loved one’s personal property is close to the $50,000 threshold, and you are waiting for certain valuable items to be appraised, then you may want to go ahead and file for full probate if you believe it’s likely that, once appraised, the value of the items will push the estate’s value over the threshold.

Similarly, if you have any pending lawsuits, such as a wrongful death lawsuit that you anticipate winning, you should also file for full probate. If there is a chance that you will win a large amount of money on behalf of your loved one, it is better to be on the safe side when you’re near the threshold.

If your loved one owned real estate

It should also be noted that if your loved one owned a house, property or land, no matter its value, solely in their name––a house, property, land, etc––then their estate cannot be considered a “small estate,” and must go through full probate.

However, if they had joint ownership of a property (with their spouse, for example) and their personal property value is less than $50,000, then the small estate proceeding can still be used. The jointly owned property will not pass through administration, as it passes to beneficiaries by operation of law. 

If you are ever in doubt, enlist the expert guidance of a probate lawyer. Probate laws can be confusing, and mistakes in probate court can be costly. 

Filing for a small estate proceeding

For estates below the $50,000 threshold, the court offers what is called a small estate administration, or a voluntary administration proceeding. This is a simplified court procedure that essentially allows the executor, who is designated in the will, to distribute the estate’s assets to their legal beneficiaries according to the will.

In order to do that, the executor must file a form called the “Affidavit of Voluntary Administration,” also known as the “small estate affidavit,” with the Surrogate’s Court. NYCourts.gov offers a free online tool to help you prepare the small estate affidavit. If you have a lawyer, they can also help you prepare the affidavit. 

Once the affidavit is complete, the executor or administrator of the estate files the original Will, a certified death certificate, the small estate affidavit petition, and all other supporting documents in the Surrogate’s Court in the county where your loved one had their primary residence.

The NYCourts.gov small estate affidavit program will guide you through the necessary paperwork and provide you with the next steps. On the same webpage, you can use the court locator tool to find the Surrogate’s Court in your county. Once you have all your documents together, it’s time to make an appointment at the court and file. 

People want to avoid full probate for a good reason. It’s a long, costly process that is subject to errors and delays that are often out of your control. While the small estate administration process is generally much simpler than full probate, if you do end up needing to put your loved one’s estate through full probate, don’t panic. The important thing is to get the job done correctly.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.