What if someone dies without a will?

We may collect assets throughout our lives that we imagine passing into the hands of our loved ones. These assets could be money intended for schooling or even a favorite piece of jewelry. A last will and testament is the legal tool most commonly used to dictate how and to whom assets transfer posthumously. For those who die without completing a will, New York state law determines asset distribution. A harsh reality is that laws can’t account for a person’s intent to transfer school money or jewelry to a relative if the decedent (person who has died) did not communicate their plan before dying.

What is intestacy?

If having someone other than you decide where your assets go after you pass away sounds unpalatable, then it may be time to consider planning a will if you don’t already have one.

First, some relevant vocabulary. What is intestacy?

Intestacy means a person dies intestate or without a last will and testament. When a person dies (a decedent) without a last will and testament, there is no legal indication of how they intended to distribute their assets posthumously. Their assets are divided through a legal process called Administration.

Who gets what?

It depends. That said, the law on intestacy in New York is clear-cut in these specific scenarios.

If the decedent has:

1) a spouse and no children, then the spouse inherits everything.

2) children* but no spouse, then the children inherit everything.

3) a spouse and children*, then the spouse receives the first $50k plus half of the remaining balance. The children receive the rest.

4) parents but no spouse and no children, then the parents inherit everything.

5) siblings but no spouse, nor children, nor parents, then the siblings inherit everything.

*If the decedent’s child dies before them, but that child still has living children (grandchildren), the grandchildren replace that child as distributees.

On the one hand, the law is clear on what happens in these scenarios. On the other hand, if these scenarios aren’t what you would like to happen with your assets, then it’s time that you talked to a legal expert about a will so that you have control over where your assets are going.

How common is intestacy?

For the last four years, a national survey performed by caring.com has indicated that 2 out of 3 adults do not have wills. The 2021 survey showed a 63% jump in 18-34-year-olds as a direct reaction to the COVID-19 pandemic, but low numbers stayed steady in the 34-54 and 55+ ranges. The most common reasons for not yet having a will were procrastination and not knowing how to get started. That means that nearly 2/3 of the country could be leaving courts to decide where their hard-earned assets and emotional belongings are going rather than making the decision themselves.

Working with a legal expert to create a will gives you and your loved ones control over where your assets are going. It’s a simple and essential process that your loved ones will thank you for later.


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