Think you don’t need a last will and testament? It’s a topic people prefer not to think about, but if you were to pass away without a will, your assets would be distributed by a process called intestacy, instead of based on your specific expressed desires.
When a New Yorker dies intestate, that person’s assets get distributed among surviving members of his or her family according to New York Estates, Powers and Trusts Law. Pursuant to NY EPTL 4-1.1, if the decedent has a spouse but no children, then the spouse gets the whole of the estate.
If there is a spouse and children, then the decedent’s spouse will receive the first $50,000 of the estate and one half of the balance of the property in the estate. The children inherit the rest of the estate. IS THIS WHAT YOU REALLY WANT? A RELATED ISSUE IS DO YOU WANT YOUR “ADULT” TEENAGER TAKING FULL CONTROL OF HIS OR HER SHARE OR WOULD YOU PREFER THERE BE SOME OVERSIGHT? FINALLY, A WILL ALSO LETS YOU HAVE A SAY IN WHO WILL BECOME THE GUARDIAN OF YOUR MINOR CHILDREN.
If there are children of the decedent, but no spouse, then the children receive equal shares of the estate. Any children who pass away before the decedent will pass their share on to their own children.
If there are is no spouse, children, or grandchildren, then the decedent’s parents and heirs (decedent’s siblings, nieces and nephews) will inherit.
Without a will, you lose the power to direct how your belongings will be distributed after your death.
With a will and an estate plan, you can ensure that your property and assets end up where you want after your death, as opposed to where a court determines. Moreover, by planning in advance, you can help alleviate some of the stress placed on loved ones after your death. Finally, estate planning will also give you an opportunity to address related issues such as health care proxies, living wills, and durable powers of attorney. These are all issues you should consider when meeting with an attorney to plan for the future.
If you have any questions, feel free to contact our office.