PROBATE - Decedent Left a Will (and estate assets of more than $30,000.00)
When a New York domiciliary dies (decedent) having a Last Will and Testament (testate), PROBATE is the process in which: (1) a Will is "proved " to the satisfaction of the Court to be the valid Last Will and Testament of the decedent, (2) the person named in the Will as Executor (fiduciary) is appointed to carry out the wishes of the decedent, and (3) jurisdiction is obtained over all interested parties who are given an opportunity to oppose the Will prior to its admission to probate. The proceeding is commenced by the filing of a petition and supporting documents with the court. FORMS are available at the court or can be downloaded from this website. [Note: if the decedent died without a will, then the proceeding is an ADMINISTRATION.]
ADMINISTRATION - Decedent did NOT leave a Will (and estate assets of more than $30,000.00)
When a New York domiciliary dies (decedent) without a Will (intestate), an ADMINISTRATION is the process in which Letters are issued to a distributee of the decedent who is eligible to receive them. Thus, it must be determined who are and who are not distributees. EPTL §1-2.5 defines a distributee as a "person entitled to take or share in the property of a decedent under the statutes governing descent and distribution." EPTL §4-1.1 establishes the rules for the descent and distribution of a decedent's estate. The proceeding is commenced by the filing of a petition and supporting documents with the Court. FORMS are available at the court or can be downloaded from this website. [Note: If the decedent died with a Will, the proceeding is a PROBATE proceeding.]
SMALL ESTATE - personal property assets only of less than $30,000
When a New York domiciliary dies (decedent) with less than $30,000 of personal property then it's considered a small estate, and is formally called a voluntary administration. It does not matter if the Decedent had a Will or not. Personal property are things that belong to a person not including real property.
In some cases, there is a possibility of a wrongful death or other lawsuit in the future. In that case, a probate proceeding or an administration proceeding should be filed instead even if there is less than $30,000 of personal property at the time of Decedent's death.
If the Decedent owned real property, like a house or land, in their name alone then it's not a small estate. If there's real property and a Will, then a probate proceeding should be filed. If there's no Will and real property then an administration proceeding should be filed. If Decedent owned real property jointly with another person and had less than $30,000 of personal property, then it's a small estate.
In a small estate proceeding, the Surrogate's Court appoints a Voluntary Administrator. If there is a will, the Executor of the will is appointed the Voluntary Administrator. If there is no will, then the closest heir is named the Voluntary Administrator. The Surrogate's Court issues a certificate for each asset listed in the papers which the Voluntary Administrator collects and distributes according to the law. The proceeding is commenced by the filing of a petition and supporting documents with the Court. FORMS are available at the Court or can be downloaded from this website. Additionally, New York State Unified Court System’s CourtHelp offers a Do It Yourself Program for unrepresented litigants at http://nycourts.gov/CourtHelp/DIY/smallEstate.shtml