In an ideal world, no one would ever pass away without first writing a will to determine what happens to their property. Unfortunately, many people do just that, either because they did not think they needed to, or because they were afraid to, or because they just never set aside the time for it. Here are five things you should know if your loved one passes away without a will:

  1. The property becomes intestate
    1. When someone dies without a valid will, their property falls into what is known as intestacy. When property is intestate, that means there is nothing to determine where the property should be allocated. All intestate property will be divided up by the probate court, regardless of what the deceased or their family members might want.
  2. Intestate property is divided according to state statute
    1. Every state, including New York, has an intestacy statute that determines how the property should be divided up. In New York, the spouse of the deceased, if they are still alive, gets $50,000 plus half of whatever is left over from the estate. Once the spouse gets their share, the remainder is divided up equally among the deceased person’s children. If they have no living children, it then goes through the family tree, out to the deceased person’s grandparents, aunts, uncles, and grandchildren. Anyone who is not related to the deceased person can expect to get nothing from their estate.
  3. Oral promises are not usually admissible
    1. It might seem tempting to try to solve the complexities caused by intestacy by citing an oral promise made by the deceased loved one while they were still alive. Unfortunately, the law is very strict about what it will accept as a valid will, and oral promises not backed up by documentary evidence will have little sway over a court. If it is not a written document signed by the decedent and witnessed by at least two impartial witnesses, it is not valid as a last will and testament.
  4. Creditors and tax collectors will try to take their share
    1. That is not to say that only family members or others hoping to inherit will be the only ones to get something from the estate. If the decedent had any unpaid debts or back taxes from when they were alive, those creditors and tax collectors will also come to take their share. Unfortunately, without a proper estate plan in place to protect their assets, there may not be much you can do to stop this scavenging of your loved one’s property.
  5. Other testamentary instruments might be relevant
    1. Just because someone died without a will does not mean all is necessarily lost, however. Other testamentary documents, such as a living trust, may help to save some of the person’s property from intestacy. However, to understand what options might be available to you during an intestacy proceeding, you should contact an attorney with experience handling estate litigation matters.

The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.

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