BASIC (11-04)

PR 08305.035 New York

A. PR 04-309 (N.Y. ) New York Law on Small Estates

DATE: July 23, 2004

1. SYLLABUS

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.

2. OPINION

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, Q