You have requested that we review recent changes in the law regarding New York small
estates. Based on our review of the New York Surrogate's Court Procedure Act, below
is a proposed draft of POMS section GN 02315.070 New York - Small Estates. This draft incorporates comments made by the PSC.
GN 02315.070 New York - Small Estates
BACKGROUND
The New York Surrogate's Court Procedure Act ("SCPA") provides two different procedures
which individuals may use to settle small estates without formal administration. An
individual authorized to act pursuant to either of these procedures would constitute
a "legal representative" of the estate for purposes of receiving Title II or Black
Lung payments.
The legal representative must comply with the provisions of the SCPA. Payment may
not be made under any of the procedures described below where the debt to the estate
exceeds the maximum statutory amount. This information must be ascertained at the
earliest practical point in the claims process.
B. POLICY - VOLUNTARY ADMINISTRATOR
1. Basic Statute
Where the decedent died without a will and died leaving personal property of $20,000
or less, a competent adult may serve as voluntary administrator of the decedent's
estate in the following order of priority: spouse; child or grandchild; parent; brother
or sister; niece or nephew; aunt or uncle; the fiduciary of a distributee; or the
chief fiscal officer of the county (except in the Counties of Bronx, Kings, New York,
Queens, Richmond, Erie, Monroe, Nassau, Onondaga, Suffolk and Westchester). No other
person can become a voluntary administrator. SCPA § 1303(a).
Where the decedent left a will and died leaving personal property of $20,000 or less,
the named executor or alternate executor would have the first right to act as voluntary
administrator, by filing an affidavit within thirty days after filing the will in
surrogate's court. If the executor or his/her alternate does not file the required
affidavit within thirty days after filing the will in surrogate's court, then beneficiaries
under the will could file the required affidavit and act as voluntary administrator
in the following order of priority: the sole beneficiary of the will or the fiduciary
of a deceased sole beneficiary, one or more of the residuary beneficiaries or the
fiduciary of a deceased sole beneficiary, or the public administrator or county treasurer.
SCPA § 1303(b), § 1418.
Up to $56,000 of personal property is exempt from the $20,000 limit if the decedent
is survived by a qualified spouse or minor children. These exemptions include furniture,
appliances, computers and clothing valued up to $10,000; books, pictures and computer
software valued up to $1,000; farm animals and machinery valued up to $15,000; a car
valued up to $15,000; and money or other personal properly valued up to $15,000. Estates,
Powers and Trusts Law ("EPTL") § 5-3.1.
The voluntary administrator's qualification to act is accomplished by filing an affidavit
and a death certificate with the Clerk of the Surrogate's Court of the county in which
the decedent resided. The evidence of the voluntary administrator's qualification
and authority to act consists of a certificate of the court showing that the voluntary
administrator has filed the required affidavit.
2. SSA Procedure
Payment may be certified to the voluntary administrator upon his/her presentation
for retention by SSA of:
a. the certificate of the court showing that the voluntary administrator has filed
the required affidavit,
b. a completed Form SSA-795, with a statement that the individual is, pursuant to
the requirements of New York's Surrogate's Court Procedure Act, authorized to apply
for any underpayment on the account of the decedent, and will, upon payment, give
SSA a receipt.
c. proof of decedent's death, if not already previously submitted to SSA.
SCPA § 1305.
C. POLICY - PUBLIC ADMINISTRATOR
1. Basic Statute
Public administrators, who exist in the Counties of Bronx, Kings, New York, Queens,
Richmond, Erie, Monroe, Nassau, Onondaga, Suffolk and Westchester, are authorized
to administer estates of $20,000 or less without letters of administration. SCPA 1115,
1211. Of relevance here is that the SCPA permits the public administrator (or a county
treasurer who has not been appointed a voluntary administrator) to receive Title II
payments of $500 or less owed by SSA to the estate of a decedent who resided in the
county in which the administrator or treasurer holds office. SCPA § 1311. Note that
if the treasurer is serving as a voluntary administrator, then GN 02315.070B (not GN02315.070C) is applicable.
2. SSA Procedure
A payment of $500 or less may be made to the public administrator (or county treasurer
who has not been appointed a voluntary administrator) of the county in which the decedent
resided, on presentation for retention by SSA of :
a. a certificate evidencing his/her authority to act pursuant to the SCPA,
b. a completed Form SSA-795, with a statement that the individual is, pursuant to
the requirements of New York's Surrogate's Court Procedure Act, authorized to apply
for an underpayment of $500 or less on the account of the decedent, and will, upon
payment, give SSA a receipt, and
c. proof of decedent's death, if not already previously submitted to SSA.
SCPA § 1115.
D. POLICY - PAYMENT OF CERTAIN DEBTS WITHOUT ADMINISTRATION
The SCPA also provides for the payment of certain debts of a deceased individual to
a surviving spouse, close relative, distributee, or creditor of the deceased. SCPA
§ 1310. Application to SSA for payment pursuant to SCPA § 1310 should be forwarded
to the Office of the Regional Chief Counsel. Note that
for claims for Title II or Black Lung underpayments, SCPA § 1310
would only be applicable if (1) the surviving spouse or other close
relative did not otherwise qualify to receive the underpayment (see
POMS GN 02301.030) or (2) there was no voluntary administrator or public
administrator appointed as the legal representative of the deceased's
estate (see §§ B and C, above).
E. FORM SSA-1578
Note that Form SSA-1578 (Underpayment Under Title II of the Social Security Act to
Legal Representative of Estate of Deceased Beneficiary) is obsolete and should no
longer be used.
Ellen E. S~
Assistant Regional Counsel