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What if Someone Dies without a Will?

by Feb 10, 2019

A will leaves the estate to named persons and organizations. Through a will, the testator can make specific gifts, distribute percentages of the estate, and create trusts for management and future distribution of all or some of the assets of the estate. But what if a New Yorker dies without a will or a will is held to be invalid?

Distribution of Assets

If an individual dies without a will he or she is said to have “died intestate”. New York laws contain rules for distribution of property, both real and personal, in intestacy. In essence, New York State creates a statutory will when a validly executed will is not available.

If a person is survived by spouse and no children, the spouse will be the sole distributee and gets the entire estate. This can even be the case when the husband and wife were estranged for many years, but never obtained a divorce.

If a person is survived by spouse and children, then the spouse gets $50,000 and one-half of the rest of the estate with the second half divided equally among the surviving children.

If a person is survived only by children, the estate passes to children in equal shares.

If any of the children predeceased the individual who died intestate, their shares will pass to the grandchildren. All grandchildren will divide shares equally, even if one predeceased child had one child while other predeceased children had many.

If a person is not survived by a spouse or children, the estate passes to parents or surviving parent, and if parents are no longer alive, the estate passes to siblings and their children.

The person in charge of an estate distribution

When an individual executes a will, he or she typically appoints an executor of his or her estate. The executor is responsible for making sure that the person’s wishes are carried out in accordance with the provisions of the will. But who is in charge of the estate if there is no will?

If a person died intestate, someone will need to petition the Surrogate’s Court to become an administrator of the estate. New York law establishes the following order of priority for appointment as administrator: surviving spouse; children; grandchildren; parent; siblings; any other distributee.

Minor children

What if the surviving children are under the age of 18? Then, the court will appoint a “guardian of the property” to manage the child’s share of the estate. That guardian could be the surviving spouse, but not necessarily. If both parents die leaving minor children, then the court will also appoint a “guardian of the person” for each minor child. It is possible that the guardian of the person may not be the same as the guardian of the property and there could be conflict between the two as to what is in the child’s best interest.

Having a will creates a plan of actions for after you are gone. Additionally, by naming a guardian in a will, you get to choose who looks after your children and their financial well-being. By executing a will you make your wishes known and do not let others decide what to do with your estate. We can help you draft a will and put together a comprehensive estate plan. Please feel free to contact us for an appointment. We offer free consultation.

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