Nassau County Intestate Succession

There are several different estate planning document that you can use to make sure the people you select receive your property once you pass away. 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. NY EPTL § 4-1.1. 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 as well as other estate planning documents. Contact an experienced Nassau County estate planning 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.

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Selecting your heirs

Under New York estate law only spouses and specific blood relatives are potential legal heirs. For instance, if you are survived by your spouse, but have no children, your spouse will receive all of your estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the rest of it will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your property if you do not have a surviving spouse. There are also provisions for when parents, grandparents and other blood relatives will be entitled to receive all or a portion of an estate. NY EPTL § 4-1.1

New York also has rules regarding who is considered a child for purposes of intestacy rules. Adopted children are treated just like biological children. On the other hand foster children and stepchildren are not considered biological children and, therefore, are not entitled to inherit under intestacy rules. Biological children who you have given up for adoption and who were legally adopted by another family are not entitled to inherit through intestate succession. If you father a child outside of marriage and paternity is established under New York law, that child is entitled to an inherit in the same manner as other biological children.

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.

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.

Avoiding Intestacy

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. 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. There must be at least two witnesses who also sign the will. NY EPTL § 3-2.1(a)(4). 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 at least 18 years old 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 gift you left him or her in the will. Furthermore, failure to properly execute your will will cause a delay in the probate process and possibly subject it to a will contest.

Contact the Law Offices of Stephen Bilkis & Associates

To avoid the pitfalls associated with intestacy it is a good idea to work with 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 staff 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 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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