Small Estate Proceeding
Question: My father died without a Will leaving only a checking account in his sole name with a balance of $35,000. My brother and I are his only heirs. I have heard that there is a proceeding in the Surrogate’s Court to handle an estate of this value. Can you tell me about it?
Answer: It is important to note that not all estates require a full probate or administration proceeding. The small estate also known as a voluntary administration proceeding is a simplified Surrogate’s Court procedure available if the decedent passed away and had $50,000 or less in personal property. The small estate asset limit has increased as of November 25, 2019 from $30,000 to $50,000. The voluntary administration proceeding cannot be used if the decedent died owning real property held solely in his or her name. If the decedent had conveyed most of their property to a trust but there remains some property titled outside of the trust, the voluntary administration proceeding may also be available to collect those assets. The proceeding is available if the decedent died with or without a Will.
The person who files the “Affidavit of Voluntary Administration” and asks to be appointed as Voluntary Administrator is either the nominated executor in the decedent’s Will or the closest living relative if the decedent died without a Will. The person filing the Affidavit is asking the Court to let them collect the assets of the decedent, pay any debts and distribute the property to people who have a legal right to inherit either under the Will or under the laws of intestacy if the decedent passed away without a Will.
The voluntary administration proceeding is less complex than a full probate or administration proceeding because consent does not have to be given by the distributees of the decedent’s estate. This can avoid the expense of a long and drawn out Will contest proceeding or litigation over the appointment of a fiduciary in a full probate or administration proceeding.
However, the small estate does have some drawbacks which include getting the authority to only collect the specific assets listed on the Affidavit of Voluntary Administration and not the broad authority to collect all assets of the decedent. You would only get this authority with a full probate or administration proceeding. If you are uncertain about the assets of the estate, it may be wise to proceed with a full probate or administration proceeding, rather then doing the voluntary administration proceeding and then having to go back to the court to convert the proceeding to a full probate or administration proceeding if it is discovered that there are assets valued at over $50,000.
While the Voluntary Administration proceeding is simple, it is always a good idea to consult with an experienced Trust and Estate’s attorney to ensure that it is the best way to proceed.