New York City Intestate Succession Lawyer

If you do not make a will before you die, New York State will make sure you have one by writing one for you. The will that New York writes for you will be a generic, "boilerplate" will be based on New York's laws of intestate succession. In other words, your will be the same as any other New Yorker who died without leaving a will. 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. You can pick and choose who receives specific pieces of your estate. You can also choose to specifically disinherit certain family members. The only way to be sure that none of your property becomes subject to intestacy is to make a last will and testament that is clearly written and properly executed according to the requirements of New York law. To learn more about the benefits of having a will as well as other estate planning documents, contact an experienced New York City Intestate Succession Lawyer who is familiar with will drafting and will work closely with you to create an estate plan consistent with your goals.

What is the role of the estate administrator in intestacy?

The executor is the person you name in your will to manage your estate after you pass away and make sure your property is distributed according to your wishes. That person is typically a spouse, adult child, sibling, or some other person who you trust. If you do not have a will the person who is appointed to manage your estate is called an estate administrator. Under the supervision of the Surrogate's Court, the estate administrator will gather your assets, inventory and appraise them, pay your taxes and debts, and ultimately distribute your property to your heirs. Oftentimes the person who is appointed by the court to be your estate administrator is your spouse or your child. However, the court could also appoint a professional or public administrator who is a complete stranger.

Who are my heirs?

Under New York laws of intestate succession, your primary heir is your spouse. If do not have children your spouse will automatically get our entire estate. If you also have children, your spouse will still get more than half of your estate. 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 only by spouse. If you are survived only by a spouse your surviving spouse will inherit 100% of your estate.
  • Survived by spouse and issue. The term "issue" means children. If you are survived by both a spouse and children, then your spouse will inherit the first $50,000 of your estate, plus 50% of the residue, meaning balance of your estate. Your children will share equally in the remaining 50% of your estate.
  • Survived by issue. If you are survived by children but no spouse, then your children will all share in your estate equally.
  • Survived by grandchild. If any of your children predecease you, but leave children, then your grandchildren will receive your child's share.
  • Survived by parents. If you are survived by one or both of your parents, but not by a spouse, children or grandchildren, 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, grandchildren, or parents, then your siblings will share equally in 100% of your property.
  • Survived by grandparents. If you are survived by one or more of your grandparents but not by a spouse, children, grandchildren, parents, or siblings then your property 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 intestate succession legally adopted children are treated as biological children and are entitled to a share of your estate. 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 § 4-1.1.

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 an institution such as your college or organization such as your favorite charitable organization. In order to leave your estate to anyone other than your statutory heirs, you must say so in a duly executed will.

What if one of my heirs cannot be located?

If you include someone in your will, you are likely quite close to that person and are in contact with that person. On the other hand, if a relative inherits from you based on intestacy, then it is more of a possibility that you were not in contact with that person prior to your death. If this happens, then your estate administrator will make a reasonable effort to locate the missing heir. While this rarely happens, if you pass away without leaving a will and no heirs can be found, then under New York's Abandoned Property laws, your property will end up going to the state of New York by a process called “escheat.” N.Y. ABP. Law § 1215

Are all assets 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 by operation of law outside of a will. Examples of such property include:

  • Living Trust. Property that you have transferred to a living trust will go to the beneficiaries of that trust immediately upon your death according to the terms of the trust. Trusts that you created and funded during your lifetime are not subject to the probate process and the trustee is not required to get the approval of the Surrogate's Court judge to distribute trust assets. The trustee is only required to abide by the terms of the trust document.
  • Payable-on-Death (POD) Accounts. A payable-on-death (POD) or transfer-on-death (TOD) account is a special type of financial account where you effectively given some one interested in the account that does not take effect until you pass away. The "payable upon death" designation means that the financial account will transfer to the payee immediately upon your death even if you do not leave a will. However, the payee would have no control over or access to the account prior to your death. POD and TOD accounts can be set up for checking accounts, savings accounts, investment accounts, money markets, and certificates of deposit as well as U.S. savings bonds. In contrast, a financial account that does not have a POD or TOD 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. With such accounts, your beneficiaries will receive the account balance upon your death regardless of whether or not you have a will.
  • 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.

However, if you own property with another person as tenants in common, upon your death your share of that property will not go to the other owner, but to your beneficiaries of heirs. Without a will, it will be subject to the rules of intestate succession.

  • Inter-Vivos Gifts. If you give a gift to someone during your lifetime, the legal term for that gift is an inter-vivos gift. As such, the property has already been transferred out of your estate and would not be available to pass to your heirs based on the rules of intestate succession.

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 be subject to intestacy rules. For example, if you purchased an asset not long before your death and before you had a chance to transfer it to your trust or give it away, if you do not have a will that property will go to your heirs through intestate succession.

How do I avoid the pitfalls of intestacy?

The only way to avoid intestacy is to make a valid will. If you make a will but the Surrogate's Court determines that it 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. This also means that when executing your will you cannot have been under the influence of drugs (even prescription drugs) or alcohol.
  • 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. However, if you are not physically capable of signing your will, but otherwise have the testamentary capacity to make a will, the law allows another person to sign for you as long as you are 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 an oral 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 admitted accepted by the Surrogate's Court 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 include the appropriate documents 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 estate does not for into intestacy it is important that your estate planning documents are properly drafted and executed in consultation with 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 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

1.800.NY.NY.LAW (1.800.696.9529)