Suffolk County Intestate Succession

The purpose of making a will and other estate documents is to control what happens to your property once you pass away. If you fail to make a will, then your property will be divided up among your statutory heirs based on New York's law of intestate succession. There would be a strong possibility that the people who end up with your property are not those who you want to have it. While thinking about life after you have passed away can be frightening and unpleasant, failing to carefully plan who to distribute your property could leave those you care about without any part of your probate estate. To learn more about drafting a will and other estate planning options, contact an experienced Suffolk County intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates who understands the pitfalls of intestate succession and who will work closely with you to draft a will that sets forth the manner in which you want your estate to be distributed.

The premise of New York’s intestacy statute is that property should stay in the family. The assumption is people want to take care of their close family members. If they did not state otherwise, then the law goes with the assumption that a decedent would want all of his (or her) property to go to his next of kin. In New York, the next of kin is the spouse and the children. The spouse inherits only if he (or she) survives the decedent. In the words, if the spouse has already passed away, his share would not go to his next of kin. If a child predeceases a parent, then the child’s share would go to the child’s children—the decedent’s grandchildren, if any. In the absence of a surviving spouse, children or grandchildren, then the property would go to other relatives of the decedent. Under New York, intestate distribution is as follows:

• Surviving spouse but no descendants. Spouse will inherit everything
• Children but no surviving spouse. Children inherit everything;
• Surviving spouse and children. Spouse and children share in entire estate, with the spouse receiving the first $50,000, plus 50% of the remaining property. The children will receive the other 50%.
• Parents but no surviving spouse or descendants. Parents inherit everything.
• Siblings, but no surviving spouse, descendants or parents. Siblings inherit everything.

The problem with intestate succession and the reason you would want to avoid it, is that it makes assumptions which may not be accurate in your case. The law assumes that you want your property to go to your next of kin; and the law assumes that there are no other people or institutions that you want to receive at least a portion of your estate. With intestate succession your property will not go to friends and organizations such as churches, universities, and charities, even if wanted it to. As an experienced Suffolk County intestate succession lawyer will explain, merely expressing the desire for your property to be distributed in a certain way is not legally sufficient. You would have to have expressed those wishes in a properly executed will.

Another issue that a will can address is naming a guardian for your minor children, in the event that you pass away, leaving no one to care for them. With a will you can nominate someone to serve as a guardian. In the absence of a will, the court will determine who will be the guardian. While the court is likely to appoint someone who you know and with whom your children have a relationship, the court may not appoint the person who you would have selected. There is even the potential that your children end up in foster care while the court sorts out the guardianship issue.

“Intestate” means dying without a will. So, the only way to avoid intestate succession rules being applied to your estate is to make a will. It is important that you work with an experienced Suffolk County intestate succession lawyer when you make your will as in order for your will to be valid it must be drafted an executed in a manner that is consistent with New York law. Under New York law, a will must be written, it must be signed by you at the end, and it must be witnesses by 2 competent people. In addition, you as the testator must be at least 18 years old and you must not be mentally incapacitated. If your will is not executed as required by law, then the Surrogate’s Court will not admit it to probate. Furthermore, if your will is not properly drafted with language that ensures that all contingencies are addresses, then is it still possible that some property in your estate may end up part of your intestate estate. This is why it is of utmost importance that your will is drafted by an experienced intestate succession attorney in Suffolk County.

A trust is another type of estate document that can be an effective way to leave property to family, friends, and organizations. One of the advantages of a trust is that the assets that are held in a trust avoid probate. However, this does not mean that a way to completely 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 to which you transferred your assets, it is possible 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, then the property would be part of your estate and would be addressed 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 by an experienced intestate succession attorney serving Suffolk County 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.

The consequences of dying without a will is that your final wishes may not be carried and those who you care about may not receive your property. Furthermore, if you do have a will, but it is declared invalid because it was not drafted or executed properly, your estate will be subject to the laws of intestacy. To ensure that your will and other estate planning documents are properly drafted and executed, it is important for you to have experienced representation. With over 20 years of experience, the attorneys at the Law Offices of Stephen Bilkis & Associates will help create and execute a will and other estate documents that reflect your individual goals and that will ensure that your estate 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: Bronx, Staten Island, Nassau County, Brooklyn, Manhattan, Queens, Suffolk County, Long Island, and Westchester County.