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New York law allows certain relatives of a deceased person to collect money without filing any papers in court, saving time and money. The law also allows anyone that paid for the decedent’s funeral to get repaid from the decedent’s funds, again without court intervention. Through the use of the small estate affidavit (SCPA 1310), money or securities may be collected from the decedent’s banks, insurers, government agencies, employers and other institutions.
The small estate affidavit discussed in this section differs from the “Affidavit in Relation to Settlement of Estate Under Article 13.” The latter is a document filed in Surrogate’s Court by a person seeking to be appointed Voluntary Administrator of a small estate. On the other hand the small estate affidavit is a document, prepared by a claimant or attorney, which is presented to the the bank or other financial institution seeking the release of the decedent’s funds.
The small estate affidavit is not appropriate for every situation and it cannot be used if a fiduciary has previously been appointed by the court. However, where the affidavit is applicable, the procedure is simple, quick and inexpensive.
We have provided Small Estate SCPA 1310 Affidavit forms at the end of the next section. You are free to prepare the affidavits online, print them or save them for future use.
Before you continue to the forms section, we urge you to review the information on this page so that you are familiar with the 1310 process.
Here's How The Small Estate Affidavit Works
The Surviving Spouse May Collect up to $30,000
Upon the death of a decedent, the surviving spouse may collect up to $30,000 in assets by simply presenting the institution(s) with a small estate affidavit and a death certificate. The affidavit must state that the payment and all other payments received by the spouse from all institutions do not exceed $30,000.
If your husband or wife dies with assets of $30,000 or less, you should be able to collect the money without much hassle or expense. However, you cannot collect the assets by small estate affidavit if an Executor, Administrator or Voluntary Administrator has been appointed. Additionally, not all assets may be collected in this manner. For example, real property cannot be liquidated by using an affidavit.
30 Days After Death...
Certain Relatives or a Creditor May Collect up to $15,000
After 30 days have elapsed from the date of death, up to $15,000 may be collected by the spouse, children, parents, siblings, nieces and nephews or a creditor who has paid the funeral expenses. The list of relatives is in order of entitlement. Therefore, if the decedent was survived by a spouse, only the spouse can collect the money. If the decedent was survived by children and no spouse, only the children may collect. If the decedent was not survived by a spouse or children, then the parents may collect and so on. Why was the surviving spouse included in both sections? Possibly to maintain the order of entitlement: a surviving spouse always has first priority.
Although the statute allows for payment to a funeral creditor, the creditor cannot collect the money alone. The request for payment of funeral expenses must be made in conjunction with the surviving spouse or other relative.
6 Months After Death...
Other Relatives or a Creditor May Collect up to $5,000
After 6 months have elapsed from the date of death, up to $5,000 may be collected by a distributee or by a person who has paid for the decedent’s funeral. Examples of distributees are grandchildren, grandparents, aunts, uncles and cousins. In contrast to the preceding section, here payment is made to the funeral creditor upon the affidavit of the person being paid.
A decedent is survived by his wife and two minor children. Although he had a house and $50,000 in a bank account, they were held jointly with his wife and they automatically became hers when he died. But the decedent had a bank account that was titled only in his name with a balance of $30,000. The wife has a small estate affidavit prepared and presents it to the bank and receives a check made payable to her for 30,000. The husband’s estate is settled and the wife will not need to file any papers in court.
A decedent is survived by her three adult children. When she died, the mother had a bank account containing $7,500 and a life insurance policy in the amount of $7,500 with no beneficiaries named. Thirty days after the mother’s death, one of the children has two affidavits prepared. One small estate affidavit is presented to the bank and the other to the life insurance company. The bank and the life insurance company payout a total of $15,000 to the three children in equal shares.
In the scenario above, if the decedent was not survived by children but rather parents, or siblings or nieces and nephews, the result would be the same only the funds would be paid to the applicable class of next of kin.
A decedent died with a bank account balance of $4,500. He had no close relatives so a friend arranged and paid for his funeral. After six months have passed, the friend presents a small estate affidavit a copy of the paid funeral bill to the bank. The bank pays the balance of the account, $4,500, to the friend as reimbursement of funeral expenses.
The above examples are only some of the situations where a small estate affidavit may be used to collect assets and avoid filing documents in court. There are many more situations where the affidavit would work.
As a courtesy to our visitors we have provided several Affidavit forms that you can fill out online and print. Each form is prepared for a specific set of facts. Please read each choice carefully to make sure you are using the correct form. If none of the forms presented below fit your facts, you may wish to consult with an attorney for advice on how to proceed.
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Important to know: anyone receiving payment using the 1310 affidavit is accountable to an Executor or Administrator if one is later appointed for the decedent’s estate.
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