no will

No Will, No Way: What Happens When You Die Without a Will? 

Picture of By: Shannon McNulty, Attorney, The Village Law Firm

By: Shannon McNulty, Attorney, The Village Law Firm

Shannon's work is sophisticated and reflects her deep knowledge of the laws governing estates, taxation and child guardianship issues. Shannon approaches each client with sensitivity and compassion, understanding that many of the decisions that they will have to make can be difficult.

Learn More About Shannon

Ensuring that you have a will in place is at the heart of estate planning; it ensures that your assets – all that you have worked hard to save for much of your life – will be passed onto those individuals and entities of your choosing. Without a will – and with the exception of any designations made pursuant to a retirement account, life insurance, and other relevant accounts – assets pass according to state intestacy laws in accordance with the probate process. 

With mid-September marking National Wills Week, now is the time to speak with an experienced attorney and ensure that you have the right estate planning documents in place, including an updated will, as we describe below:

The Law in New York

In the case of New York decedents who pass without a will, inheritance depends upon their circumstances. For example, in the case of:

  • Residents without a will, children, or descendants: A surviving spouse inherits the probate estate
  • Residents with descendants: The surviving spouse gets the first $50,000, and the balance is divided equally between the surviving spouse and the decedent’s descendants
  • Residents without a surviving spouse, descendants, parents, or siblings: Half of the estate will generally pass to the decedent’s mother’s relatives and the other half to the father’s relatives. However, if the closest surviving relative is a second cousin, the estate passes to the State of New York

When Dying Without a Will is Especially Problematic 

While many might assume that only the very wealthy need estate planning documents in place, in fact, a recent analysis indicates that dying without a will is especially problematic when the estate is modest and the primary asset is the home. There is no question that research supports the contention that having a will is even more important for households whose circumstances are not properly addressed in state default inheritance laws. Wills are especially valuable when the major bequeathable asset would likely decline in value if it was split among multiple owners, which is what tends to happen when default laws go into effect in place of a will.

The U.S. Constitution protects the right to leave assets to whomever you want, but without a will, assets can essentially get dispersed to unintended recipients, which often ultimately leads to fractionalization of the property, where a modest estate is the biggest asset to pass on. This is why it is critical to put in place a will and other crucial estate planning documents in order to ensure that one’s goals and visions for their estate and assets are properly executed.

It is also important to note that New York inheritance law does not allow children to manage inherited funds until they turn 18 years old, which is why it is critical to make the proper plans for your children with an attorney. Ultimately, individuals being able to hold onto inheritance goes hand-in-hand with having a will in place.

Many also find that not having a will leaves surviving family members struggling with legal complexities, increased costs, and strained relationships, as they are left wondering what the decedent would have wanted and whether they are pursuing the right course. In some of these cases, conflicting wishes and accounts of the decedent’s wishes can even lead to lengthy court battles amongst relatives, which can completely shatter the hopes and intentions of decedents who value privacy and a love for their families.

Potential Challenges

Some find that identifying an executor can be a stumbling block to finalizing their will. Those who do not have a spouse or children often select a trusted friend, but if they are the same age or older, there is a chance that they either will not survive the process or will not be willing to handle the estate administration, in which case having a named backup is ideal. Another option is to name a bank or other institution as the executor or even the attorney who helps to draft the will. However, it is important to note – as is separately documented in New York – that all attorneys may receive a full statutory commission as executors and be provided with compensation for providing these services to the estate.

Do Not Forget to Update Your Will

Your will should also be updated if there are any major life changes, such as:

  • Marriage or divorce
  • Childbirth or adoption
  • Death of an individual previously named in the will
  • Retirement
  • Significant changes in financial circumstances, such as increased wealth
  • Any changes in charities that you support 

As a result, many find that revisiting and reviewing their will every few years to see whether updates are needed is a necessity.

Finding the Right Lawyer: Contact Our New York Estate Planning Attorneys

Second to having a will in place is ensuring that you have the right, professional will in place. There is a reason that our community of clients here in New York strongly recommends us: We ensure that we provide only the very best estate planning services for our clients and their families and friends. With two centrally-located offices in the heart of New York City, we are prepared to help with your estate planning needs and your legacy planning. Contact us today to schedule a consultation and find out more. 

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