When a person dies without leaving a valid will in New York state, the assets of the deceased are divided up according to the laws of intestacy. If a person dies intestate and has a spouse and no children, the spouse inherits everything. If a person dies intestate and has children but no spouse, then the children inherit everything. However, if a person dies intestate with a surviving spouse and children, the spouse will inherit the first $50,000 and the remaining balance will be divided accordingly: 50% to the surviving spouse and 50% to the children in equal shares. If a person dies intestate with no spouse and no children (as well as no grandchildren from those children), then there is a hierarchy as to who inherits as follows: living parents; if no living parents, then to any living siblings and issue of pre-deceased siblings; if no living siblings nor any living issue of pre-deceased siblings then to first cousins.
It is advisable that everyone has an estate plan with a valid will in place, especially if you do not agree with your estate passing to the default intestate beneficiaries listed above. Many complications can arise when someone passes without a will – there can be unintended beneficiaries of your estate and unintended fiduciaries in charge of your estate.
Another pitfall with intestate administration is that in certain scenarios a public administrator can be appointed as the fiduciary of the estate to collect and distribute a decedent’s assets. The public administrator will receive commissions for serving and the public administrator has their own attorney who will be paid attorney’s fees from the estate assets. Having a will where you nominate a person you trust to serve as executor can avoid this scenario.
Additionally, if your estate is passing through intestacy, the fiduciary of your estate may very well have to be bonded for the value of the estate. This is an extra burden on the fiduciary which can make an already stressful position even worse. Coming up with extra money for a bond premium will be an extra unnecessary expense in addition to legal fees, carrying costs of the real estate you left behind (taxes, utilities, insurance, etc.) and payments for your funeral.
