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What Happens If You Die Without a Will in New York?

September 11, 2023
David Parker, Esq.
New City Estate Planning Attorney working with couple to create will
David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
Dying intestate can have unintended consequences for pretty much every family type. However, it is especially painful if there are unmarried partners or stepchildren, who are left out under the law in almost every scenario.

According to a recent article, “The Confusing Fallout of Dying Without a Will,” from The Wall Street Journal, despite the consequences for their heirs and loved ones, millions of Americans still don't have a will. The total wealth of American households has tripled over the past thirty years, according to the Congressional Budget Office. Still, more than half of Americans polled by Gallup said they didn’t have a will in 2021. Another survey showed that one in five Americans with investible assets of $1 million or more don’t have a will.

Dying without a will state means New York laws will determine who gets your assets. In some cases, loved ones could end up with nothing. They could be evicted from the family home and even hit with massive tax bills.

This is especially problematic for unmarried couples. One example—after 18 years of living together, a couple had an appointment with an estate lawyer to create wills. However, the woman died in a horseback riding accident just before the appointment. Therefore, her partner had to get the woman’s sons, who lived overseas, to sign off, so he could be appointed her executor. The couple had agreed between themselves to let him have the home and SUV they’d purchased together. However, state law gave her sons her 50% interest. Therefore, he had to buy out her son’s interest to keep his home and car.

Dying without a will, or “intestate,” means you can’t name an executor to administer your estate, name a guardian for minor children, or distribute the property as you want.

Here’s what you need to know about having—or not having—a will or an estate plan:

State law governs property distribution. In New York, when there is a surviving spouse and children, half of the money of the estate goes to the surviving spouse and half of the money goes to the children. And that's very different than what most people believe an estate plan would be, which is, I give everything to my spouse if he/she survives me, and then the money goes to the children. If your children are minors, the money from that half of the estate would go into a trust. However, if your child is 18-years-old, then they receive the full amount of the estate awarded to them. No one believes that an 18-year-old if awarded $100,000 from an estate would make good choices when using that money. So it's essential to have some kind of an estate plan in place to ensure that this does not happen to you or your family if you and/or your spouse pass away unexpectedly. Working with an experienced New City estate planning attorney means that your family is protected both now and in the future. Read more in my article, Spendthrift Trust - How Do I Stop Heirs from Foolishly Wasting Inheritance?

Check on all assets for beneficiary designations. Retirement accounts and life insurance policies typically pass to whoever is listed as the beneficiary. However, if you never named a beneficiary, the state’s laws will determine who receives the asset. Also, if you have not checked your beneficiary designations since getting married, having children, or getting a divorce, it's essential to ensure that your intended loved ones will be awarded your policies.

If you don’t have a will in New York and want to be sure the intended people in your life have access to the money how you intend them to receive it, let's explore your options together. Schedule a free call with me to learn about the best ways to accomplish your goals for your estate and protect your family.

Reference: The Wall Street Journal (May 2, 2023) “The Confusing Fallout of Dying Without a Will”

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