If a close family member dies leaving less than $50,000.00 in personal property (typically cash, bank accounts or stocks), New York law provides a simplified procedure for collection of this property without the need to formally probate a Last Will and Testament or petition the Court for Letters of Administration. Instead, the person seeking to collect and distribute these funds needs only present an Affidavit of Voluntary Administration to the Court and, provided this person is an appropriate person, the Court will issue Letters of Voluntary Administration to such person. If the deceased person died with a Last Will and Testament, this document must be filed with the Affidavit of Voluntary Administration; if they died without a Last Will and Testament, all that is needed is an Affidavit of Voluntary Administration. The filing fee collected by the Court for this type of proceeding in $1.00, which is typically paid in cash. In addition to completing and filing the Affidavit of Voluntary Administration, filing the Last Will and Testament of the decedent with the Court, if applicable, and paying the required $1.00 filing fee, an original, certified copy of the decedent’s death certificate must be filed with the Court.
Please note that though a Last Will and Testament has been filed with the Affidavit of Voluntary Administration, and the Court has appointed you as Voluntary Administrator, the Will has not been admitted to probate, and the Court has not passed on the validity of the Will. What this means is that, if property is discovered which causes the total value of all personal property of the decedent to exceed the $50,000.00 threshold, the Voluntary Administrator must now formally petition the Court for probate of the decedent’s Last Will and Testament and must defend any contest to the Will as a result of the formal probate petition.
The above having been said, if a person petitions the Court seeking their appointment as Voluntary Administrator in bad faith – either actually making a misrepresentation to the Court, filing a Will of the decedent’s which is known to have been replaced by a later Will or filing a Will which is known to be ineffective – this person is answerable for his/her misdeeds, and the Court will enter a judgment if sought by someone who was harmed by the Voluntary Administrator’s wrongdoing, as well as referring this person to the local District Attorney’s office for prosecution.
After appointment, the Voluntary Administrator must undertake to collect assets of the decedent, pay all creditors of the decedent, and, after waiting 7 months, distribute estate property to either the beneficiaries named in the Last Will and Testament or to the decedent’s “distributees” as provided for in New York’s EPTL §4-1.1.
New York Law provides a specific pecking order as to who can petition to be the Voluntary Administrator. The order as to who can petition when the decedent dies without a Last Will and Testament is as follows: 1) surviving spouse, 2) child or children, 3) grandchildren of predeceased child/children, 4) parent/s, 5) brothers/sisters, 6) nieces/nephews, and, finally, 7) aunts/uncles. If the decedent died with a Will, then the nominated executor has priority over all others and is the person who should petition for Letters of Voluntary Administration.
Please note that if a family member dies leaving real estate or a cause of action (lawsuit), these assets cannot be administered using the simplified procedures outlined above, but, instead, the decedent’s Last Will and Testament must be probated or a petition must be made to the Court asking for “full” Letters of Administration.
Christopher C. Haner practices in the areas of Estate
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