What Happens If I Die Without A Will?

What Happens If I Die Without A Will?

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If you have any assets at the time of your death that are in your name, then in order to transfer those assets to your descendants, your estate has to go through what’s known as probate. Probate is with the Surrogate’s Court in the county in which you resided when you passed away. Someone will step up as the Executor or administrator of your estate. When you have a will, there is an Executor you name, but if there is no will, then there is an administrator. Beneficiaries can be children or spouses. If a person passed away with no children or spouse, then there could be a sibling, and if there are no siblings, then it could be the parents. If there are no parents, then it would go to the aunts, uncles, or cousins. Those people would be the general priority of who could step up as an administrator.

Once someone steps up as administrator, they go into Surrogate’s Court and petition the court to be the administrator of the estate. The estate would be distributed according to what’s known as the laws of intestacy. Intestacy means that a person died without a will. They have to follow the laws of intestacy which describe the general scheme of distribution of every asset, and they are essentially going to go to the relatives. They are going to start by going down to descendants, they are going to look to the children, and if there is a spouse. If there are no children and no spouse, then it goes sideways to siblings. If no siblings, it goes up to the parents and from the parents, and if no parents it goes to the aunts and uncles on both sides. If there are no aunts or uncles that are still living, then it would go to the children of the aunts or uncles, who are essentially the cousins.

If at some point the person passed away and they had no one to distribute to, then the assets would escheat to the State of New York. Escheat is a funny word to pronounce. New York state would essentially get all of the assets if there is no one else to get them. The administrator steps up and distributes according to the laws of intestacy and if there is no one to receive and no administrator, then eventually New York state will step in. They will petition to be the administrator of the assets regarding that person. A way to avoid that, of course, is to have a will. The will defines the distribution scheme that you want.

Another way to avoid intestacy it is to have one or more Trusts where all of your assets are in your Trust. If you die without a will and have assets in your name, then you have to go through the laws of intestacy through the Surrogate’s Court with an administration. If you die without a will and if you have a Trust which owns your assets, then the Trust is going to govern, your Trustee is going to take over, and it is going to be distributed exactly in the way that you want it distributed.

One of the things my firm recommends all the time is the creation of Trusts. There are only a few circumstances where it really makes sense to do only a will these days. It makes much more sense in many circumstances to do a Trust. You might pay a little bit more upfront for an estate plan with a Trust, but you are going to pay a lot less than your distributees would have to pay by going through the Surrogate’s Court. A Trust will allow you to avoid the time, expense, and frustration of Surrogate’s Court and distribute the assets exactly as you want them to be distributed.

When we do planning, we look to the goals of the individual or couple, and we work to fashion an estate plan for them that meets their goals, avoids Surrogate’s Court to the greatest extent possible, and protects against creditors and taxes.

For more information on Dying Without A Will in Long Island, Nassau County and Suffolk County, a FREE phone consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 806-0762 today.

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