and Your Family
Manhattan Intestate Succession
If you do not make a will before you die, New York will make sure you have one by essentially writing one for you. And as you might guess, it will not have the same provisions in it that you would have included. Under New York law the term for passing away without having a will is called "intestacy." When you write a will you set forth exactly what you would like to happen to your property. When New York applies intestacy rules to your estate the people who end up with your property may be very different from what you envisioned. The only way to be sure that none of your property becomes subject to intestacy is to make a will that is clearly written and properly executed. To learn more about the benefits of having a will as well as other estate planning documents, contact an experienced Manhattan Intestate Succession Lawyer who is familiar with will drafting and will work closely with you to create an estate plan consistent with your goals.
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Under New York laws of intestate succession, your primary heirs are your spouse and your children. However, if you pass away without a spouse or children, then the law states that your property will go to other blood relatives in a specific order. NY EPTL § 4-1.1
- Survived by spouse. If you are survived by a spouse and you do not also have surviving children, your surviving spouse will inherit 100% of your estate.
- Survived by spouse and children. If you are survived by both a spouse and children, then all share in your estate. Your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. Your children will inherit the remaining 50% of your estate.
- Survived by spouse, children and grandchildren. If you are survived by both a spouse and children, then all share in your estate. Your spouse will inherit the first $50,000 of your estate, plus 50% of the balance. Your children will inherit the remaining 50% of your estate. However, if any of your children predeceases you and is the parent of your grandchildren, then your grandchildren will inherit your deceased child's share.
- Survived by children. If you are survived by children but no spouse, then they will all share in your estate equally. Your grandchildren (whose parent is your child) will inherit the share that would have been your child's share if that child had not predeceased you.
- Survived by parents. If you are survived by one or both of your parents, but not by a spouse or children, then your parents will share equally in 100% of your estate.
- Survived by siblings. If you are survived by siblings but not by a spouse, children, or parents, then your siblings will share in 100% of your estate.
- Survived by grandparents. If you are survived by one or more of your grandparents but not by a spouse, children, parents, or siblings then your estate goes to your grandparents as follows. 50% to your paternal grandparents and 50% to your maternal grandparents.
- Survived by aunts and uncles. In the case where your estate would have gone to your grandparents, if neither of your paternal grandparents survive you, then their share will go to your paternal aunts and uncles. Similarly, if neither of your maternal grandparents survive you, then their share will go to your maternal aunts and uncles.
For purposes of the intestacy rules legally adopted children are treated as biological children. Posthumous children, meaning children conceived by you but not born before your death, are entitled to a child's share of your estate. Children born outside of marriage are entitled to share in your estate if you acknowledge them or if paternity was established under New York law. Foster children and stepchildren, on the other hand, are not entitled to share in your estate unless they were legally adopted by you. Similarly, biological children who you placed for adoption and who were legally adopted by another family are not entitled to inherit. NY EPTL § 4-1.1Absence of Heirs
While this rarely happens, if you pass away without leaving a will and without having any heirs your estate may eventually end up going to the State of New York by a process called “escheat.” Keep in mind that intestacy laws do not allow your property go be inherited by non-relatives. Thus, your best friend would not get anything even if you intended for that person to receive part of your estate. Nor could part of your estate go to your favorite charitable organization, your church, or your alma mater. In order to leave your estate to anyone other than your statutory heirs, you must say so in a duly executed will.Selecting a Guardian
Another problem presented by intestacy is that you would not have identified a guardian for your minor children. In such a case the court will make a determination as to whom should be their guardian. While the court is likely to choose a family member, the court may not choose the family member that you would have selected. Furthermore, if no family member is willing or able to serve as a guardian your children may be placed in foster care and eventually adopted by other family. In addition, if your children inherit property from you the state will also determine who will be responsible for managing their assets until your children become adults.Selecting an Administrator
The executor of an estate is a person you select to manage your estate and make sure the property is distributed according to your wishes. That person is typically a spouse, adult child, or sibling. If you do not have a will, the individual that is appointed to manage your estate is referred to as an administrator. Oftentimes this person is your spouse or your child. However, the court could also appoint a professional or public administrator who is a complete stranger.Assets Not Subject to Intestate Succession
If you do not have a will not every asset in your estate will be subject to intestate succession. There are several types of assets that pass to your beneficiaries outside of a will. Examples of such property includes:
- Revocable Living Trust. Property that you have transferred to a living trust will go to the beneficiaries of that trust immediately upon your death. When you transfer property to a trust, you no longer own the property. The trust owns it for the benefit of the beneficiary. Thus, when you as the trustor, pass away property in the trust will not be subject to probate or intestate succession since the property will not be considered to be owned by you. The trustee will distribute the trust's assets to its beneficiaries according to the terms of the trust agreement.
- Payable-on-Death (POD) Accounts. A POD account is a special type of bank account where you designate a payee who will receive the balance in the bank account upon your death regardless of whether or not you have a will. The payee would have no control over or access to the account prior to your death. POD accounts can be set up for checking accounts, savings accounts, money markets, and certificates of deposit as well as U.S. savings bonds. In contrast, a bank account that does not have a POD designation will be included in your estate. In the absence of a will it will pass to your heirs via intestate succession.
- Beneficiary Designations. Accounts and assets that include beneficiary designations are not included in your estate that would be subject to probate or intestate succession. Such assets include life insurance policies, pension plans, 401(k) plans, IRA accounts, stock plans and other types of retirement accounts. In addition, POD bank accounts and TOD (transfer-on-death) investment accounts allow you to designate a beneficiary.
- Joint Tenancy. Property you own with someone else in joint tenancy with the right of survivorship or tenancy by the entirety will go to the other owner when you pass away. Several types of property can be owned jointly with another person including a bank account, investment account, real estate and a business. These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will this asset will not fall into your estate that is subject to intestate succession rules.
- Inter-Vivos Gifts. This may seems obvious. However, it may be so obvious that many people do not consider it. Property that you give away while you are still living, referred to as an "inter-vivos" gift, will not be included in your estate since you will no longer own it when you pass away.
Simply because you have a trust, accounts with beneficiary designations or other assets that would not be subject to intestate succession does not mean that without a will your estate will not have an intestacy problem. Despite your best efforts, there is almost always property in your estate that in the absence of a last will and testament will end up being subject to intestacy rules. For example, if you purchased real property or received real property not long before your death and before you had a chance to transfer it to your trust, if you do not have a will that property will go to your heirs through intestate succession.Avoiding the Pitfalls of Intestacy
The only way to avoid intestacy is to make a will. More to the point, you must have a will that is valid. If the Surrogate's Court determines that your will is not valid, then it will not be admitted to probate. The result would be the same as if you had no will at all: your estate will be subject to the rules of intestate succession. In order for a will to be valid in New York, several requirements must be met.
- Testamentary Capacity. You, as the testator, must be 18 years old or older, and you must be of "sound mind and memory." NY EPTL § 3-1.1. In other words, you must be an adult and you must not be mentally incapacitated.
- Undue Influence. You must not have been under undue influence when you made your will. This means that your last will and testament will not be valid if someone used physical or emotional force to make you execute a will or to make you include specific provisions in your will. For example, if a caretaker isolates an elderly person from his or her family and convinces him or her to write a will that leaves the entire estate to the caretaker, that will could be successfully challenged based on undue influence.
- Signature. You must have signed the will at the end. There is some flexibility with this requirement. Recognizing that a testator may have the mental capacity to make a will, but is physically fragile to the extent that he or she may not be able to sign the will, the law allows another person to sign for the testator as long as the testator is present and directs the person to do so. NY EPTL § 3-2.1. If someone signs your will for you, that person must also sign the will.
- Witnesses. The execution of your will must have been witnessed by at least 2 people. If the witnesses were not present at the signing the testator must acknowledge to the witnesses that he or she did indeed sign the will.
There are two exceptions to the requirements that a will must be signed and witnessed: a holographic will and a nuncupative will. A holographic will is handwritten by the testator and signed, but it is not witnessed. A nuncupative will is a spoken will that is witnessed by at least 2 people. NY EPTL § 3-2.2. A holographic or nuncupative last will and testament would only be valid in New York if made by someone who is a member of the armed forces serving during an armed conflict, by someone who is accompanying the armed forces, or a mariner who is at sea.
Your estate plan should not include planning for intestacy. Instead, your estate plan should include the appropriate tools that will ensure that your property will go to the people or organizations of your choice as quickly as possible once your pass away. To ensure that your will and other estate planning documents are properly drafted and executed it is important for you to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience creating estate plans for clients in New York. We will work closely with you to develop an overall estate plan that reflects your individual goals and that will ensure that your estate is does not end up going to statutory heirs through intestate succession. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.