Avoiding Probate with an Affidavit

When someone in NY dies with a small estate, the family may be able to avoid going to Court by using a 1310 Affidavit.

This affidavit may be used by certain family members or the decedent’s creditors to collect assets up to a certain value in the decedent’s name.

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.

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.

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.

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