Probate courts in New York determine the distribution of assets belonging to people who died without a will, and they are guided by the state law of intestacy. The court will apply by default the basic inheritance rules established by the state. When people prepare an estate plan, avoiding probate is often one of the goals because of the cost, lack of privacy and length of time that the process often entails.
In general, assets will be divided equally among a person’s surviving children if the decedent’s spouse has also passed away. Any creditors that may have claims upon one or more heirs could now go after the inheritance . Because the wishes of an intestate person cannot be known by a probate court, no considerations will be given to the character of heirs, who might be irresponsible with money or too young to make wise decisions. If a special needs person inherits assets, the alteration of the person’s financial status could suddenly disqualify the individual for essential government assistance programs.
Estate planning with trusts offers people the legal tools to potentially avoid negative consequences like this. Instead a trust can receive assets and then administer them according to the wishes of the person who created the estate. Trusts also provide people with control while still alive, which contrasts with the risks associated with giving heirs joint tenancy of assets.
A surviving spouse who is grappling with the administration of the decedent’s estate may want to obtain the assistance of an attorney who has experience with these matters. In many cases, the attorney can provide advice regarding the client’s responsibilities regarding the distribution of assets and other issues.