When a parent dies without a Will and leaves behind money (example $10,000) in a sole checking account, a proceeding would be governed by the small estate process. Not all estates require a full probate or an administration proceeding. If the deceased passed away after January 1, 2009 and has $30,000 or less in personal property, they are entitled to a voluntary administration proceeding, which is a simplified Surrogate’s Court procedure.
The small estates procedure cannot be used if the individual who passed away owned real property when he or she died. The process can be utilized if the deceased died with or without a Will or if they conveyed their property into a trust. To start the small estates process, an Affidavit of Voluntary Administration must be filed. By filing the Affidavit of Voluntary Administration, a person is asking to be appointed as a voluntary administrator of the estate.
This individual may be nominated in the deceased’s Last Will and Testament, if one was created, or, if a Will is not available, the deceased’s closest living relative would be chosen. The individual who files the Affidavit is asking the court to allow them to collect the deceased’s assets, pay any debts, and distribute their personal property to those who have a legal right to inherit them, either in accordance with a Last Will and Testament or under the laws of intestacy if the individual died without a Will.
A Voluntary Administration proceeding is less complex than a full probate of the Will or an administration proceeding. In a Voluntary Administration proceeding, consent does not have to be given by the beneficiaries of the deceased’s estate. This helps to avoid Last Will and Testament contest, which can be a long and expensive process. Additionally, a Voluntary Administration proceeding helps to avoid litigation over the appointment of a fiduciary in a full probate or administration proceeding.
Even though a Voluntary Administration proceeding may be less complex than a full probate or administration proceeding, it is important to consult an experienced attorney to assist you in the process. The experienced attorneys at Hobson-Williams, P.C. are available to assist you with any concerns relating to Elder Law, Trusts and Estates. For more information or to schedule a consultation, contact our knowledgeable New York Elder Law attorneys at (718) 210-4744.