Few people realize how their property ends up being distributed if they die without a Will. Many incorrectly assume their assets pass to their surviving spouse. The outcome under New York law may surprise you.
Passing away without a Will is called dying ‘intestate’. What happens to your property if you die intestate depends on your state’s laws. The implications this can have on your loved ones varies among each jurisdiction. This article discusses the impacts of intestacy legislation in the state of New York.
The New York intestacy legislation is set forth in the New York consolidated statute estates, powers & trusts, article 4. The terms of the statute may seem bizarre to some, but unfortunately, many residents aren’t aware of its terms.
When does my spouse receive the whole estate?
Under the statute, your spouse only receives the entire estate if you have no surviving issue (children, grandchildren, great-grandchildren and so on).
What happens if there are surviving descendants?
If there are any lineal descendants involved, your spouse’s share is reduced. For example, if you die leaving behind two children, then your spouse only receives the first $50,000 plus half of the balance of your estate. The remainder is divided equally between your children. This is the case, even if your spouse is the parent of all your children.
The division of property under this statute can have a far-reaching impact on the family. How is your spouse going to provide for minor children if he/she needs to keep part of the property in a trust for them? Will the family home need to be sold to give the children or grandchildren their share? These are the very real problems which can arise from such a situation where one spouse dies without making a New York Will.
How much do grandchildren receive?
Unfairness can also arise where grandchildren are involved. The New York intestacy law provides that issue inherit by way of representation. This means that if a child has died, that child’s children will inherit their parent’s share equally.
This may be confusing, so here’s an example:
Say you are a widowed grandparent. You have one surviving child and two deceased children (who left behind grandchildren: two grandsons from one and a granddaughter from your other deceased child). If you pass away without writing a New York Will, then your estate is divided into thirds (representing your 3 children). Your surviving child and granddaughter each receive one third. The two grandsons must share one third (because they take their parent’s share).
This outcome would seem highly unfair to the two grandsons. Yet this is exactly what would happen if you did not specify your wishes in a properly drafted New York Will.
What can I do to avoid intestacy?
You need to make a valid Last Will and Testament which complies with the New York Will Requirements. Knowing and complying with the legal requirements of making a Will in your state is crucial.
This is because your Will must be submitted to the court for approval before any property can be distributed in accordance with it. If your Will is not accepted by the court, then you are deemed to have died intestate (unless you made an earlier Will which was not revoked and proves to be valid).
Even if your Will appears to comply with the requirements on the face of it, its validity can be contested by your relatives. This is why you should take the formalities very seriously. You should also have your Will self proved to add further authentication.
Having a Will can save your family from financial complications when you die. It’s not a concern just for the elderly. You should make a Will as soon as you reach majority, but research your options thoroughly. If you don’t know where to start, Newyorkwill.org provides an informative resource on wills and estates specifically for the state of New York.
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