Long Island Intestate Succession

When someone passes away having written a will, that person is described as testate. If a person passes away without a will, that person is described as intestate. If there is will, after the testator passes away, the will is admitted to probate and the decedent’s assets are distributed to his (or her) beneficiaries. A testator has a great deal of flexibility as to who he (or she) can leave property to including family members, friends, and employees. A testator can even choose to leave property to institutions such as schools, religious organizations, or charities. On the other hand, without a will the decedent has no say as to what happens to his property. Instead, the state of New York decides. To learn more about the requirements for a valid will in New York, contact a Long Island intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates.

Under the rules of intestate succession your next of kin will be entitled to receive your assets upon your death. First in line to receive your property is your spouse and your children. For purposes of intestacy rules, children who are legally adopted are treated the same as biological children. Foster children and stepchildren who were not legally adopted are not treated like biological children and are not entitled to an intestate share. Biological children adopted out are not entitled to an intestate share, while posthumous children are. Grandchildren are entitled to receive their parent’s share if their parent (your son or daughter) predeceases you.

• Surviving spouse and children. Spouse gets first $50,000 plus 50% of the remainder of the estate. Children receive the other 50% of the estate, divided equally.
• Surviving spouse no children. Spouse receives entire estate.
• Children no surviving spouse. Children receive entire estate divided equally.
• Parents, but no surviving spouse and no children. Parents receive entire estate.
• Siblings, but no parents, surviving spouse or children. Siblings receive entire estate.

As you can see, under the rules of intestate succession on relatives of the decedent can inherit. If you would like to leave property to friends, employees, other nonrelatives, or institutions you have to do so in a will.

As an experienced intestate succession attorney in Long Island will explain, the best way to avoid intestacy is to execute a will. The will must be executed in a manner that is consistent with New York Estates, Probate and Trusts Law. This means that it must be in writing, you must sign it, and two witnesses must also sign it. In addition, you must have executed under your own free will, meaning that if you were under duress or subject to undue influence when you executed the will, then the will would not be valid.

In addition, if your will does not have the proper safeguards in it, it is possible that part of your estate may end up being subject to intestacy rules. For example, if you do not have a residuary clause in your will, estate property that ends up in as part of your residuary estate because you did not specifically leave it to anyone will fall into intestacy.

Thus, it is not only important to have a will, it is important that your will is properly drafted to ensure that no part of your estate is subject to the rules of intestate succession.

Example. Jody created a will that left parts of her estate to specific family members. Jody left her niece, Sarah, an expensive diamond necklace that Sarah had admired for years. Unfortunately, niece died in a tragic accident 5 years prior to Jody’s death. Jody never changed her will did not have a residuary clause. As an intestate succession attorney serving Long Island will explain, because Jody’s will did not have a residuary clause, the diamond necklace would fall in Jody’s intestacy estate. If Jody’s will had a residuary clause, the diamond necklace would go to the residuary beneficiary.

To ensure that all of your property goes to people of your choosing, it is important that you have a properly drafted and executed will. The intestate succession attorneys in Long Island at the Law Offices of Stephen Bilkis & Associates have decades of experience representing testators, executors, fiduciaries and beneficiaries with a variety of complex estate issues related to drafting will and other estate documents, as well as matters that arise during estate administration. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Brooklyn, Manhattan, Nassau County, Queens, Staten Island, Suffolk County, Bronx, Long Island, and Westchester County.