and Your Family
Nassau County Intestate Succession
There are several different estate documents that you can execute to make sure the people you want to receive your property once you pass away will actually get it. The most common document to accomplish this is a will. It is a good idea that every adult make a will because if you do not, then New York law will determine what will happen to your property. In other words, New York will write a will for you. Passing away without having a will is referred to as passing away “intestate." The court determines who your legal heirs are and what portion of your estate each will get based on intestate succession rules. In leaving the fate of your estate up to intestacy rules you forfeit your right to choose beneficiaries, name the executor of your estate, and select a guardian for your minor children. If you want to make sure that your property goes where you want it to go upon your death, you need to have a will. Contact an experienced Nassau County intestate succession lawyer who will work closely with you to make sure that your will reflects your wishes and that it is consistent with the requirements of New York law so that intestate succession rules do not have to be applied to the distribution of your property.Intestate heirs
In New York, the basic rule as to who is considered a decedent’s next of kin and entitled to inherit in the absence of a will is fairly straight forward. The decedent’s surviving spouse, if any, and his (or her) children are entitled to the decedent’s entire estate. The spouse gets a bit more than the children. The surviving spouse is entitled to the $50,000, plus half of the remaining estate. The decedent’s children are entitled to the other remaining half of the estate. If the decedent leaves a spouse, but no children, the spouse inherits everything. If the decedent leaves children but no spouse, the children inherit everything.
New York law has a very specific definition of who is considered a child for purposes of inheriting though intestacy. In addition to biological children, adopted children are also entitled to inherit. On the other hand, foster children and stepchildren will not inherit unless they were legally adopted. Children you placed for adoption and who were legally adopted will not receive a share. However, if your children were adopted by your spouse, they are still entitled to inherit. Children born after the decedent dies will inherit. Children born outside of marriage, also called non-marital child, will inherit from a male decedent only if paternity is established. There are 4 ways to establish paternity: the father and the child’s mother must sign an acknowledgment of paternity and filed it where your child’s birth certificate is registered; the father signed a document acknowledging paternity; the father openly acknowledged the child as his own; or a court determined paternity. Grandchildren are not left out. A grandchild will receive a share only if that grandchild's parent (the decedent’s son or daughter) is not alive to receive his or her intestate share.
In the absence of a spouse or children, the rules get a bit more complicated. According to New York Estates, Powers and Trusts Law § 4-1.1, if the decedent’s parents survive him (or her), but he has no spouse or children, the parents inherit everything. In the event the decedent leaves siblings but no spouse, descendants, or parents, the siblings inherit everything. If the decedent does not leave a spouse, descendants, parents, or siblings, other blood relatives such as nieces, nephews, uncles, aunts, and cousin will be entitled to inherit.
Under the probate laws regarding intestacy, friends, organizations, non-blood relatives, and even certain blood relatives will not be able to inherit. Furthermore, if your estate is distributed through intestacy laws then it is possible that someone you do not want to inherit your property will indeed inherit it. The best way for your wishes to be fulfilled is for you to have a will.No blood relatives
If a decedent passes away intestate and does not have any relatives, his (or her) property will “escheat” to the State of New York. However, this is rare. New York’s intestacy laws are designed to help ensure that your property will go to someone in your family, even if that person is a distant relative who you do not know and who does not know you. But, in the unlikely event that a decedent has no spouse, children, grandchildren, great grandchildren, parents, grandparents, siblings, nieces, nephews, great nieces or nephews, aunts, uncles, or cousins, his property will escheat to the state. If you believe that you are entitled to inherit an estate because you are a distant relative of an intestate decedent, there are procedures to prove kinship. Contact an experienced Nassau County intestate succession lawyer to discuss your options.Initiating administration for an intestate estate
Typically, the administration process is initiated when the executor named in the will files the will with the Surrogate’s Court along with a petition for probate. The executor will also request that the court formally appoint him (or her) executor and issue him letters testamentary. The issuance of letters indicates that the executor has the legal authority to administer the decedent’s estate.
If there is no will, then the law provides that the "closest distributee" can file to be named the estate administrator and receive letters of administration. This means that the decedent's surviving spouse would have first priority in being appointed administrator. After that, the decedent’s children would have the right to letters. As an experienced Nassau County intestate succession lawyer will explain, if the relative with the prior right does not want to administer the estate, then he or she can sign a renunciation and waiver.Assets not subject to intestate succession
Just because you do not have a will does not mean that every part of your estate will be subject to intestate succession. Only the assets that are in your probate estate will be affected by a lack of a will. For example, property that you put in a trust, property that is subject to a beneficiary designation such as a life insurance policy, 401(k) accounts, payable-on-death accounts, and property that you co-own with another person in joint tenancy will not be affected by the lack of a will. What is likely to be affected is real estate, bank accounts, investment accounts, vehicles, collectibles and personal property that you own individually.Example
Jonathan is married to Anita. Jonathan has a 12-year-old daughter from a previous marriage. Jonathan owns a townhouse and a vacation home in joint tenancy with Anita. He had a $1 million life insurance policy that named Anita as the beneficiary. Jonathan also owns $800,000 worth of additional property. Sadly, Jonathan was killed in a terrible car accident. He never wrote a will. Under the intestacy rules, Anita inherits both houses outright. She also gets $425,000 worth of Jonathan’s property which is $50,000 plus $375,000 worth of the balance. Jonathan’s daughter inherits the remaining $375,000 share of Jonathan’s property. She is also entitled to 100% of the $1 million life insurance policyAvoiding Intestacy
As an experienced intestate succession attorney in Nassau County will explain, the only way to avoid intestacy is to make a will and make sure that is it executed in accordance with the laws of New York to minimize the likelihood that it will be invalidated in a will contest. In order for a will to be valid in New York, certain formalities must be followed. New York law requires that you as the testator sign the will at the end. If you are unable to sign the will yourself, you can direct another person to sign it for you in your presence. There must be at least two witnesses who also sign the will. The witnesses must be present when you sign the will, or you must acknowledge to each witness that you did indeed sign the will. The witnesses must be competent and may not be anyone you name as a beneficiary in your will. If a witness is also a beneficiary, the witness will not be permitted to receive the testamentary gift you left him or her in the will.Contact the Law Offices of Stephen Bilkis & Associates
To avoid the pitfalls associated with intestacy, seek the advice of an experienced attorney to create not only a will, but a comprehensive estate plan that will ensure that your wishes are fulfilled and that your family and friends are taken care of in the manner you contemplate. The intestate succession attorneys serving New York at the Law Offices of Stephen Bilkis & Associates will help you 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 case. We represent clients in the following locations: Nassau County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.