Provides for the inclusion of all property required to be set off in the value of a small estate

BILL NUMBER:S6641 REVISED 05/21/12

Title of bill

An act to amend the surrogate's court procedure act, in relation to clarifying that all property required to be set off shall be included in the value of a small estate

Purpose of bill

The purpose of this bill is to clarify that all of the items to be set off for the benefit of the family under Estates Powers and Trusts Laws (the "EPTL") section 5-3. I are also included in the calculation of a small estate pursuant to Surrogate's Court Procedure Act (the SCPA) section 1301.1.

Summary of provisions of bill

This bill removes the references to subparagraphs "(1), (2), (3), (4) and (5)" of EPTL 5-3.1(a) and just refers to EPTL 5-3.1(a) to determine assets to be included along with personal property having a value of $30,000 or less, in defining the contents of a small estate.

Justification

Section 5-3.1 of the EPTL provides that, when a person dies leaving a surviving spouse or children under 21, certain property belonging to such decedent must be exempted from his or her estate assets and, instead, vest in and be set off to the surviving spouse or, if there be none, to his or her children under 21.

This statute was recently updated and modernized for the first time since 1992. L. 2010,e. 437. Chapter 437 amended section 5-3.1 by expanding some of the articles of personal property, to be exempted, deleting some of the items that were previously exempted and increasing the value of all of the items referenced therein. EPTL 53.1 is referred to in the calculation of a small estate, as defined in the SCPA. Section 1301.1 of the SCPA defines a small estate as one containing property with a value of $30,000 or less, in addition to such property required to be set off under EPTL 5-3.1 (a) (1), (2), (3), (4) and (5).

Unfortunately, cross-references in the SCPA to certain specific subparagraphs in EPTL Section 5-3.1 were inadvertently omitted and therefore the SCPA was not updated to correspond to the expanded version of EPTL 53.1 (L. 2010,c. 437). As a result the subparagraphs referenced in the relevant portion of the SCPA only include subparagraphs one through five, whereas there are currently eight different subparagraphs under current law that pertain to calculating and documenting items to be included in the exemption for the benefit of the family.

By removing the references in the SCPA to specific subparagraphs one through five of EPTL 5-3.1(a) and simply cross-referencing EPTL section 5-3.1(a) instead, it will be made clear that all of the assets to be set off for the benefit of the family are also included in the compilation of assets excluded from a small estate.

Legislative history

New bill.

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect immediately and shall be deemed to have been in full force and effect on and after January 1, 2011.