What is exempt property (or set off) property in NY and who is entitled to receive it?

Exempt property for the benefit of family as set forth in EPTL Article 5-3.1 explains that if a person dies leaving a surviving spouse or children under the age of twenty-one, then certain property items are not considered assets of the Decedent’s estate and instead, are passed down to the Decedent’s surviving spouse or children. During the settlement of the Decedent’s estate, exempt property is deemed as being reasonably required for the support of the surviving family. The court may authorize any documentation necessary for the transfer of property. No allowance of property or money shall be made to the surviving family if it did not exist prior to the decedent’s passing. Exempt property includes:

1. Housekeeping utensils, musical instruments, sewing machines, jewelry and clothing, household furniture and appliances, electronic and photographic devices, and fuel for personal use, not exceeding the aggregate value of twenty thousand dollars. This does not include items used exclusively for business purposes. 

2. Household religious books, family photos, books, records, CD’s, and other electronic storage devices used by the family not exceeding the value of two thousand five hundred dollars. 

3. Domestic and farm animals along with their necessary food for sixty days, farm machinery, one tractor and one lawn tractor, not exceeding in aggregate value twenty thousand dollars. 

4. One motor vehicle not exceeding twenty-five thousand dollars. Alternatively, if the decedent owned one or more vehicles exceeding that amount, the surviving spouse and children may acquire one of those vehicles by payment to the estate of the vehicle’s outstanding value. In lieu of receiving a motor vehicle, the surviving family may elect to receive in cash an amount equal to the value of the vehicle, not exceeding twenty-five thousand dollars. If the motor vehicle acquired by the surviving family was a specific legacy in the decedent’s will, the payment to the estate of the amount by which the value of the vehicle exceeds twenty-five thousand dollars shall vest in the specific legatee. 

5. Money including but not limited to cash, checking, savings, and money market accounts, certificates of deposit or equivalents thereof, and marketable securities, not exceeding in value twenty-five thousand dollars, reduced by the excess value, if any, of the property listed in paragraphs (1 -4). If assets are insufficient to pay the reasonable funeral expenses of the decedent, the personal representative must first apply such money to those expenses. 

6. Any set off to a child under the age of twenty-one not exceeding ten thousand dollars shall be covered as if the child were a beneficiary of the estate. Any excess amounts shall be governed by the guardianship statute, if applicable. 
   

If the property listed above is worth more than its permitted value, then the surviving spouse and children may still acquire the property so long as they make a payment of the outstanding value to the Decedent’s estate. If any item was a specific legacy in the Decedent’s will, the payment to the estate for such item shall vest in the specific legatee.