Is Probate Always Necessary?

Depending on the type of assets owned by a person at the time of their death, and the value of those assets, probate may not be required, even if the person died with a  Will.

If the only assets the decedent had in her own name are valued at less than $30,000 and do not include real property, you do not need to probate the Will. Instead, you can take advantage of Article 13 of the Surrogate’s Court Procedure Act and file an affidavit asking the Court to appoint you as a voluntary administrator with authority to access and distribute the assets.

 Although small estate administration is generally used when the value of a decedent’s entire estate is less than $30,000, it is ideal in situations where the decedent’s assets were valued at more than $30,000 but where the bulk of the  assets passed automatically upon death to named beneficiaries or joint owners.

There are a number of advantages to administering an estate as a small estate, not the least of which is that the filing fee that must accompany the affidavit is only $1. Another advantage is that there is no notice requirement in a small estate proceeding. In contrast, when probating a Will, the statute requires that everyone named in the Will, as well as anyone who would be entitled to a share of the estate if there was no Will (the distributees), be given written notice of the probate proceeding. In a small estate proceeding, the person asking to be appointed as the voluntary administrator must simply provide the Court with the names and addresses of the distributees and the beneficiaries under the Will.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.