Rudolf J. Karvay
New York Probate Attorney
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Most often, a Small Estate Affidavit under SCPA 1310 is used to access a decedent's bank or securities account. The practical (as opposed to legal) problem is that banks, brokerages, transfer agents, and institutions in general are accustomed to releasing decedent’s accounts pursuant to a probate or administration proceeding, in which the fiduciary presents his or her Letters (a document issued by the Surrogate’s Court granting authority to a fiduciary) to the institution and requests that the funds be released.
That is the procedure that institutions are familiar with, and their personnel may think of it as the only procedure that is permitted. As a result, when an individual presents a New York Small Estate Affidavit to an institution, the response may be "You can’t get the money without Letters from the Court.”
What should you do? Give up and go to Court? No. Try this first:
1. Be persistent and insistent and unrelenting.
2. Make sure that you have attached a copy of the relevant statute (NY SCPA §1310) to your affidavit or hand a copy to the agent and respectfully ask him or her to read it.
3. Politely tell the agent that your Small Estate Affidavit complies with the law, and that New York law does not require a Court proceeding or that Letters be produced for the funds to be released.
4. If the answer is still no, ask to speak to a manager or supervisor.
5. If they still refuse to comply, ask to speak to their legal department.
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