New York Small Estate Affidavit: How to File Under SCPA Article 13

By Albert Goodwin, estate attorney, Law Offices of Albert Goodwin, New York, NY. The dollar figures and statute citations on this page were checked against the current text of SCPA Article 13 and SCPA 2402 before publication. If the Legislature changes the limit or the fees, this page will be updated.

If you are the spouse or child of someone who died in New York leaving a bank account, a car, a final paycheck, and little else, you may not need probate or a full administration proceeding. New York lets you collect and distribute personal property worth $50,000 or less by filing one sworn form with the Surrogate's Court. The statute calls the procedure voluntary administration. The form is the Affidavit in Relation to Settlement of Estate Under Article 13, SCPA, which most people call the small estate affidavit. This guide covers who qualifies, what counts toward the $50,000 limit, what each part of the form asks for, the filing fee, and how filing works in the Surrogate's Courts of New York City, Long Island, and Westchester.

Who qualifies for a New York small estate (SCPA 1301)

SCPA 1301 defines a small estate as the estate of a person who died leaving personal property with a gross value of $50,000 or less, not counting property that passes to a surviving spouse or minor children as exempt property under EPTL 5-3.1. The limit was raised from $30,000 to $50,000 in 2009 and has not changed since. The procedure is available for a New York domiciliary and for a non-domiciliary who left personal property in New York.

Three points in that definition trip people up.

• Gross value: Debts do not reduce the figure. An estate with $55,000 in a checking account and $20,000 in credit card debt is over the limit.
• Personal property only: Article 13 cannot transfer real property. If the decedent owned a house, condominium, or land in his or her sole name, or as a tenant in common, voluntary administration is not available for that estate even if the personal property is under $50,000. Real property held as joint tenants with right of survivorship or as tenants by the entirety passes to the survivor outside the estate and does not block the procedure.
• Exempt property is excluded: EPTL 5-3.1 sets aside certain items for a surviving spouse, or for children under 21 if there is no spouse, before anything else is counted. One motor vehicle worth up to $25,000 is on that list, along with household furniture and appliances, and cash or other personal property, each subject to its own cap. A $20,000 car passing to a widow does not count toward the $50,000.

What counts toward the $50,000 limit

Count only assets that were in the decedent's name alone and carry no beneficiary designation. Typical examples:

• Checking, savings, and money market accounts in the decedent's sole name with no payable-on-death or in-trust-for designation
• Uncashed checks, including final paychecks, pension payments, and tax refunds
• Security deposits and utility refunds owed to the decedent
• Stocks, bonds, and brokerage accounts with no transfer-on-death registration
• A motor vehicle, to the extent it is not set off as exempt property
• The decedent's share of an account held as tenants in common with another person
• Insurance or retirement benefits payable to the estate because no beneficiary was named or the named beneficiary died first

Do not count assets that pass by operation of law or by contract. They are not part of the small estate, and the voluntary administrator has no authority over them:

• Joint accounts with right of survivorship
• Totten trust (in-trust-for) and payable-on-death accounts
• Life insurance and annuities payable to a named living beneficiary
• IRAs, 401(k)s, and pensions with a named living beneficiary
• Assets titled in a living trust
• Real property held jointly with a right of survivorship

If a bank account had no beneficiary and no co-owner, it is an estate asset and belongs on the affidavit. Our page on bank accounts with no beneficiary after death in New York explains how banks treat these accounts.

One asset deserves a separate note. If the estate's main asset is a potential lawsuit, such as a personal injury or wrongful death claim, the small estate affidavit is generally the wrong tool. Courts have questioned a voluntary administrator's capacity to sue, and defendants and insurers expect letters issued by the court. Limited letters of administration under SCPA 702 are the usual route. See our page on letters of administration.

Who may file: priority under SCPA 1303

SCPA 1303 sets who may serve as voluntary administrator. If the decedent left no will, the order generally follows the priority used for full administration: the surviving spouse first, then adult children, then grandchildren, parents, siblings, and more remote distributees. If the decedent left a will, the executor named in it may file. If none of those people is willing or able to act, the Public Administrator (or in counties without one, the county treasurer or other chief fiscal officer) may file instead.

The voluntary administrator must be a competent adult. A person with lower priority can file only if those ahead of him or her do not act. A relative ahead in priority who does not want the job can sign a renunciation, and clerks generally ask for one before accepting an affidavit from a lower-priority relative. For how this priority plays out in a full proceeding, see who becomes administrator of an estate without a will.

Getting the official form

The Office of Court Administration publishes the small estate affidavit on the Unified Court System website. Two versions exist:

• Fillable PDF: the Surrogate's Court forms page lists the Affidavit in Relation to Settlement of Estate Under Article 13, SCPA, together with its instruction sheet.
• DIY Form program: the court's Small Estate page on CourtHelp links to a guided interview that asks questions and produces a completed affidavit and the attachments the clerk expects.

Use the current version. Each form carries a revision date in its footer, and clerks return outdated versions. Several counties also hand out a local intake checklist; the county table below tells you where to ask.

What each part of the affidavit asks for

The affidavit is a single sworn statement. Everything in it is made under penalty of perjury. Where you do not know a fact, say so rather than guess. The affidavit asks for the following.

Decedent information

Full legal name exactly as it appears on the death certificate, any other names used (for example a maiden name on an old bank account), date of death, and the address and county of domicile at death. Domicile determines which county's Surrogate's Court has jurisdiction under SCPA 205. A nursing home address is not automatically domicile. If the decedent intended to return home, the home county controls.

Will or no will

Check whether the decedent left a will. If yes, the original will must be filed with the affidavit. In a small estate the will is filed but not admitted to probate, and the voluntary administrator distributes according to its terms. If the original cannot be found, the small estate route may not work and you should get advice before filing.

Family tree and distributees

List the surviving spouse and all children, including adopted children, children born outside marriage, and children of a child who died first. If there is no spouse or child, work outward to parents, then siblings, and so on. For each person give name, address, relationship, and whether the person is under 18 or incapacitated. If a distributee is a minor or under a disability, the clerk may require additional steps or decline the small estate route. Who inherits without a will is set by EPTL 4-1.1; who inherits with a will is set by the will.

Schedule of assets

Describe each asset separately: institution, type of account, last four digits of the account number, and the date-of-death value. For a vehicle give year, make, model, VIN, and a value supported by a published guide. The clerk issues one certificate for each asset you list, so an asset left off the schedule cannot be collected without an amended affidavit. Total the values at the bottom. The total must be $50,000 or less.

Real property statement

State whether the decedent owned any real property in New York or elsewhere and, if so, how title was held. Ownership as sole owner or tenant in common disqualifies the estate from Article 13. Ownership as joint tenant with right of survivorship or tenant by the entirety does not.

Funeral expenses and debts

List the funeral bill, who paid it, and whether that person has been reimbursed. List other known debts, such as medical bills, credit cards, and final utility bills, with approximate amounts. This schedule does not reduce the $50,000 figure. It shows the court and creditors how the money will be applied.

Prior proceedings

Swear that no letters have been issued to any fiduciary of this estate in any court and that no other application for letters is pending. If a probate or administration petition was filed and later withdrawn, disclose it.

Your qualification and priority

State your relationship to the decedent and why you are entitled to act under SCPA 1303. If someone with equal or higher priority exists, attach that person's signed renunciation.

Designation of the clerk

The affidavit designates the chief clerk of the Surrogate's Court as the person on whom legal papers may be served if you cannot be found within New York State. This clause is standard and cannot be struck. It protects creditors and beneficiaries who may need to bring you back before the court. Service on the clerk counts as service on you, so keep your address current with the court.

Oath

You swear to collect the listed assets, pay the funeral bill and debts in the order the law requires, distribute what remains to the people entitled, and account to the court. Sign before a notary or before the clerk, depending on the county's practice. An unsigned or improperly notarized affidavit is returned unfiled.

Documents to bring or attach

• Certified copy of the death certificate (the court keeps it)
• Original will, if any
• Paid or unpaid funeral bill
• A bank statement, letter, or other document showing the date-of-death value of each asset
• Vehicle title or registration, if a car is listed
• Renunciations from anyone with equal or higher priority who is not filing
• Your government-issued photo identification
• The filing fee and the fee for certificates

Filing fee and certificates (SCPA 2402)

The fee to file the affidavit is $1.00, set by SCPA 2402(7). Each certificate of voluntary administration costs $6.00 under SCPA 2402. You need one certificate per asset, so an estate with two bank accounts and a car requires three certificates and a total of $19.00 in court fees. Courts take cash, money order, or certified check, and many now take credit cards. Personal checks are commonly refused. Confirm payment methods with the county before you go.

Where to file: county by county

File in the Surrogate's Court of the county where the decedent was domiciled. For a non-domiciliary, file in the county where the New York property is located (SCPA 206). Each court has a small estate or miscellaneous department that handles Article 13 affidavits. The addresses below were correct at our last review. Intake procedures change, so call the small estate department before you go and ask three questions: whether you must appear in person to sign, whether a notarized affidavit may be mailed, and whether the court accepts the DIY Form packet.

Two filing errors recur. People file in the county where the decedent died, such as a hospital in Manhattan, when the decedent lived in Queens. And people file in the county where the bank branch is. Neither matters. Domicile controls. Our Brooklyn estate page covers Kings County practice in more detail.

After the clerk accepts the affidavit

Once the clerk reviews and accepts the affidavit, the court issues a certificate of voluntary administration for each listed asset. The certificate names the asset and the voluntary administrator. It functions like letters for that one asset and nothing else.

1. Collect each asset: Present the certificate and your identification to the bank, employer, or broker. Open an estate account titled in your name "as Voluntary Administrator of the Estate of [decedent]" and deposit everything there. Do not mix estate money with your own.
2. Pay expenses and debts in statutory order: SCPA 1811 sets the order: reasonable funeral expenses and administration expenses first, then debts entitled to preference under federal law, then New York taxes, then judgments and decrees, then all other debts. If the estate cannot pay everyone, lower-ranked creditors go unpaid. A voluntary administrator who follows the statutory order is not personally liable for the decedent's debts beyond the assets collected.
3. Distribute the balance: Pay the people entitled under the will, or under EPTL 4-1.1 if there is no will. Get a signed receipt from each person.
4. Report to the court: When collection and distribution are done, the voluntary administrator files a closing report with the clerk showing what was collected, what was paid, and who received the balance. Keep every receipt and bank statement until that report is filed and for several years after.

If the estate turns out to be larger than $50,000

Assets surface after death. A forgotten brokerage account or an insurance policy payable to the estate can push the total over the limit. When that happens Article 13 no longer applies. The remedy is a formal proceeding: a petition for letters of administration under SCPA Article 10 if there is no will, or a petition for probate under SCPA Article 14 if there is one. The voluntary administrator must turn over everything collected to the fiduciary appointed in that proceeding and account for it. Stop using any certificates already issued once you know the estate exceeds the limit.

Formal administration brings things the small estate route lacks: full letters that any institution must honor, authority to sell real property, standing to sue, and a defined period for creditors to come forward. It also brings higher filing fees, which SCPA 2402 scales to the size of the estate, and sometimes a bond. Our pages on New York estate administration, letters of administration, and the administrator's letter describe that process. A full probate timeline appears in a sample NYC probate timeline.

Alternatives that need no court filing

Two situations avoid the Surrogate's Court entirely.

• Everything passes outside the estate: If every account was joint or had a beneficiary, there is nothing for a voluntary administrator to collect. The survivor or beneficiary presents a death certificate directly to the institution. Our page on how to avoid probate in New York explains these arrangements.
• Payment under SCPA 1310: This section lets a bank, employer, or other debtor pay certain small sums directly to a surviving spouse and, after a waiting period, to certain other close relatives or to a person who paid the funeral, without any court paper. The caps are lower than the Article 13 limit and depend on the relationship and the time since death. Institutions are not required to use it, and many prefer a court certificate. Ask the bank before you file.

An affidavit of heirship is a different document, used in other states and in some title and real property contexts. It does not substitute for the Article 13 affidavit in New York Surrogate's Court. See affidavit of heirship for how that document is used.

Mistakes that get affidavits rejected or cause problems later

• Counting net value after debts, or omitting an asset to stay under $50,000. The affidavit is sworn.
• Answering "no real property" for a jointly held house without stating how title was held.
• Spelling the decedent's name differently from the death certificate.
• Filing in the county of death or the bank's county instead of the county of domicile.
• Filing from a lower-priority position without renunciations from the spouse or children.
• Leaving a minor child off the family tree because the money is going to the spouse anyway.
• Requesting one certificate for several accounts at the same bank. Each account is a separate asset.
• Paying siblings before the funeral home and medical providers, contrary to SCPA 1811.
• Continuing to use certificates after learning the estate exceeds the limit.

Frequently asked questions

What is the dollar limit for a small estate in New York?

$50,000 of personal property, measured at gross value and excluding exempt property set off under EPTL 5-3.1. The definition is in SCPA 1301.

How much does it cost to file?

$1.00 to file the affidavit and $6.00 for each certificate of voluntary administration, under SCPA 2402. An estate with three assets costs $19.00 in court fees.

Can I use the small estate affidavit if there is a house?

Not if the decedent owned it alone or as a tenant in common. If it was held jointly with right of survivorship or by the entirety, it passed to the survivor and does not prevent the filing.

Does the will get probated in a small estate?

No. The original will is filed with the affidavit and the voluntary administrator distributes according to it, but the court does not admit it to probate or issue letters testamentary. For an estate over $50,000 with a will, see letters testamentary.

Do I need a lawyer?

The procedure is designed for self-filing, and the court's DIY program supports it. Legal help makes sense when the family tree is unclear, a distributee is a minor or missing, a creditor is pressing, a relative with higher priority refuses to renounce, or there is doubt about whether the estate is under the limit.

How long does it take?

Clerk review runs from a few days to several weeks depending on the county and the completeness of the papers. Collecting assets afterward depends on each institution. Most small estates close within a few months.

Related pages

• New York estate administration
• Letters of administration
• Administrator of an estate without a will
• Letters testamentary
• Bank account after death with no beneficiary
• How to avoid probate in New York

The Law Offices of Albert Goodwin handles small estate filings, letters of administration, and probate in the Surrogate's Courts of New York City, Long Island, and Westchester. If you are not sure whether an estate qualifies under Article 13, or the clerk has returned your affidavit, call (212) 233-1233.