and Your Family
Queens Intestate Succession
If you do not to have a will when you die, New York will essentially write a will for you. This is not the preferred estate planning option. Under New York law, if you pass away without having a will, then you die "intestate." A court will then look to New York's intestacy rules to identify your legal heirs and to determine to what portion of your estate each heir is entitled. NY EPTL § 4-1.1. In leaving the fate of your estate up to intestate succession rules, you give up your right to select beneficiaries, name the executor of your estate, and designate a guardian for your minor children. While thinking about life after you have passed away can be frightening and unpleasant, it is wise to consider consulting with a Queens Intestate Succession Lawyer who is familiar with will drafting to make sure that you have an estate plan that ensures that your wishes are carried out.Selecting Your Heirs
New York intestacy laws identify only spouses and select blood relatives as possible heirs. If, for example, you are survived by your spouse, but have no children, your spouse will receive your entire 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 balance 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 estate if you do not have a surviving spouse. There are also provisions for when parents, grandparents and other blood relatives will share in an estate. NY EPTL § 4-1.1
New York also has rules regarding who is considered a child for purposes of inheriting. Adopted children are treated like biological children and are entitled to receive an intestate share. On the other hand, foster children and stepchildren are not considered biological children and, therefore, are not entitled to an intestate share unless you legally adopt them. 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 a biological child that is born after your death is entitled to an intestate share. If you father a child outside of marriage and paternity is established under New York law, that child is entitled to an intestate share. An order to pay child support is not sufficient to prove paternity. NY EPTL § 4-1.2
Under the probate laws regarding intestacy, friends, organizations, and even certain blood relatives will not be able to inherit. Furthermore, blood relatives who you do not wish to share in your estate might receive a share if you die intestate. For example, if you have a sibling with whom you have been feuding for years. If upon your death you are not survived by a spouse, children, or parents, then that estranged sibling would inherit your entire estate. The best way for your wishes to be fulfilled is for you to have a will.Selecting a Guardian
If you have minor children and the other parent is not available to take care for them, then someone must serve as a guardian for them if you die. While family members will likely provide input as to whom is named the legal guardian, the ultimate decision will be up to the court. Thus, it is possible for your children to become wards of the state and end up in foster care. This is a result that you do not want. If you have a will you can name exactly who you want to become your children's guardian. You can also name an alternate person in case your primary choice becomes unable to serve as guardian.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. 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 complete stranger.Assets Not Subject to Intestate Succession
Not every asset in your estate will pass to your heir via intestate succession. Only the assets which would have been affected by your will will be subject to intestate succession rule if you pass away without leaving a will. For example, most property that is owned by you alone would have been affected by your will such as real estate, a vehicle, collectibles and personal property. Other property by its very nature will not go through your will, even if you have a valid will at the time of your death. Such property includes:
- Living Trust. Property that you have transferred to a living trust will go to the beneficiaries of that trust immediately upon your death.
- Life insurance proceeds. The beneficiaries who you designate in your life insurance policies will automatically receive the policy proceeds when you die. An exception to this rule is if you name your estate as the beneficiary. It that case the proceeds will go into your estate and be distributed to beneficiaries named in your will. If you do not have a will, the proceeds will go to your heirs through intestate succession.
- Retirement Accounts. Proceeds from a pension or retirement plan such as an IRA, 401(k), or defined benefit retirement account. The named beneficiaries automatically receive the proceeds.
- Securities held in a transfer-on-death account
- Payable-on-Death (POD) bank accounts or Totten Trust. The proceeds of trusts and accounts for which you designated a beneficiary upon your death will go directly to that 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.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.Avoiding Intestacy
Your estate can fall into an intestacy problem if you pass away without leaving a will, or if you pass away without leaving a valid will. Thus the way to avoid intestacy is to make a valid will. In order for a will to be valid in New York, certain formalities must be followed. New York law requires that you 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 adults and cannot 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.
There are exceptions to the general rule that in order for a will to be valid it must have been executed with the aforementioned formalities. Under certain very specific circumstances, a holographic will and a nuncupative will be accepted as valid. A holographic will is a will that is handwritten. A nuncupative will is one that is spoken. Holographic and nuncupative wills are only valid if the testator is a member of the armed forces or accompanying the armed forces during a time of conflict, or a mariner at sea. NY EPTL § 3-2.2. If you make a holographic or nuncupative will under other circumstances, the New York Surrogate's Court will not find the will to be valid. Your estate will pass by intestate succession.Intestate Succession and Trusts
An estate plan can and should include documents other than a will. For example, a trust is a common piece of a comprehensive estate plan. One of the advantages of a trust is that the assets that are held in a trust can avoid probate. However, this does not mean that a way to complete avoid probate, and therefore, avoid the potential problem of intestate succession is to have a trust. Even when there is a living trust in place in which you place your assets, it is probably that you will have assets that are left out of the trust. If that happens and you do not have a will, then those assets will be property subject to intestate succession. For example, if you acquire property or are given property and do not get around to transferring it to your trust before your death, than the property would be part of your estate and would be affected by a will if you have one. Otherwise, it will be distributed to your heirs via intestate succession.
To avoid the potential problems that accompany intestacy, it is a good idea to work with a lawyer 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 that you select. Furthermore, even if you have a will, if it is not properly executed or it is outdated, your estate may face probate litigation that will delay distribution of your assets and potentially cause your loved ones hardship.
To ensure that your will and other estate planning documents are properly drafted and executed so that your estate will not fall into intestacy, it is important for you to have experienced representation. The staff at Stephen Bilkis and 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 estate plan.