Avoiding Probate with an Affidavit

Avoiding Probate with an Affidavit

When someone in New York State dies with a small amount of money, the family may be able to avoid probate by using a “1310”, or small estate affidavit. This affidavit may be used by certain family members or the decedent’s creditors to collect assets up to a certain value in the decedent’s sole name.

• A surviving spouse may collect up to $30,000 by providing the death certificate and an affidavit that the payment requested by the affidavit, and all other payments made to the spouse under this provision in the law, do not exceed that value.

• After 30 days from the date of death, a surviving spouse, one or more children over 18, the decedent’s parents, siblings, nieces or nephews may collect up to $15,000 upon affidavit providing that: no fiduciary has been appointed in the estate, date of death, relationship to the decedent, names and addresses of persons entitled to receive the money, and that the amount does not exceed $15,000. The relatives who may collect under this section are listed in order of priority.

For example, if your father was survived by a spouse, you, as his child, would not be able to collect the money. Payment may also be made under this provision to a creditor of the decedent or to a person who has paid the funeral expenses upon the request of one of the family members listed.

• After six months from the date of death, up to $5,000 can be collected by a distributee (certain family members who would inherit under the laws of intestacy when someone died without a Will) or by a creditor or a person who has paid for the decedent’s funeral by an affidavit providing the date of death, that no fiduciary has been appointed in the estate, that the decedent was not survived by a spouse or minor child, that the affiant is entitled to payment and that all payments made are under $5,000.

The affidavit does not work for all types of assets and some financial institutions may refuse to honor the affidavit, even though it is permitted by law. Some financial institutions may have their own version of the affidavit so it is best to check with the specific financial institution. If the assets are not collectable by affidavit, a voluntary small estate administration proceeding can be commenced in Surrogate’s Court when all personal property in the decedent’s sole name is less than $50,000.00.

  • Melissa Doris, Esq. and Nancy Burner, Esq.

Burner Law Group, P.C.

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