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Everybody Has a Will. What, You Don’t Know What Yours Says?

February 15, 2012

In New York State, everybody has a plan to pass assets on their death. Without a written Will your assets will pass on by what is commonly referred to as “Intestate Distribution” or “Intestacy.” More formally by Article 4 of the New York Estates Powers and Trusts Law (the “EPTL”) – Descent and Distribution of an Intestate Estate.

There are four ways to pass on property when you die: 1) By operation of Law –like joint tenants; 2) By contract – like a beneficiary designation; 3) By a Last Will and Testament – everything left after 1 and 2; or 4) Intestacy – which controls the same items as your Will. (All other states also have laws of intestacy with the same basic rules but may differ in who may inherit. Our focus is New York.)

Intestate distribution will be made to distributees, the nearest level of blood (including half blood) relative. So, unless you change it by a Will, your estate will pass as follows:

  1. Survived by spouse and “issue”
    • Spouse gets first $50,000 and one half of the residue of the estate (not all to your spouse as many assume);
    • Issue divide the rest (issue is your children and their progeny);
  2. Survived by spouse and no issue, then the spouse inherits all;
  3. Survived by issue but no spouse, the issue divide the estate (the kids get it all when they are 18);
  4. No spouse or issue, then to your parents; – and so on all the way to first cousins once removed;
  5. After that, your estate passes to the State of New York.

So, total strangers may inherit your life’s savings if you have no Will.

There are also many other rules and nuances to the intestate distribution that are beyond this short article.

With a Will, you can decide who receives your property and in what proportions; plan around tax problems; create a trust for children because of age or special needs; nominate guardians for your minor children; whatever is appropriate for your circumstances. Wills don’t need to be costly and complicated if you have relatively simple needs. But, if you need special planning, the cost will be well worth it. Be sure to find an attorney who concentrates their practice in estate planning and Surrogate’s Court practice. They will provide you careful planning and minimize costs with their expertise.  Ask them questions and understand your Will, and while you’re there, be sure to get a Health Care Proxy and Durable Power of Attorney.