What happens if I die without a will?

If you are a New York resident who has yet to make a last will and testament, you may wish to consider making one. Wills are not just for the wealthy. Regardless of your financial status, your will is the means by which you set forth your wishes as to who receives your property when you die.

NYCourts.gov explains that if you die without a will, the State of New York determines who receives your property because you died intestate . Section 4-1.1 of New York’s Estates, Powers and Trusts Law makes extensive provision for all manner of your possible heirs, such as your spouse, children, grandchildren and other relatives, none of which may have anything to do with your own wishes. In fact, your own wishes are irrelevant, even if someone knows what they were.

Spouse and children

If you are married with no children at the time you die and your spouse outlives you, (s)he will inherit your entire estate. If your spouse and children survive you, your spouse receives the first $50,000 of your estate plus half of the balance. Your children split the other half equally.

New York defines your children as all of the following:

  • Your biological children born during your lifetime
  • Your adopted children adopted during your lifetime
  • Your biological children born after you die
  • If you are a man, any child(ren) born outside your marriage for whom you establish paternity

Be aware that should one of your children predecease you but have children of his or her own who survive you, your deceased child’s children stand in his or her place in your line of succession and equally share in the portion of your estate that your deceased child would have inherited had (s)he outlived you.

No spouse or children

If you have no surviving spouse or children, but your parents survive you, they inherit your entire estate. Should they, too, predecease you, but you have surviving brothers and/or sisters, your siblings will share equally in your estate.

If you have no family, or if none of your family members survive you, your entire estate goes to the State of New York.

While this information is not legal advice, it can help you understand what will happen to your assets if you die intestate.

How to remove an executor of an estate

Change is something that is inevitable when it comes to contending with an estate and probate. If you are dealing with the prospect of probate after a loved one has passed away, it is likely that you have come across outdated wishes and a set-up that is no longer appropriate to the situation.

It is also quite common for loved ones of a deceased person to have issues with the executor of the will. You may feel that he or she is acting in one’s own interests, being manipulative, or that he or she is not fulfilling duties as the person is required to do. While a living person can effortlessly remove an executor of one’s will, it becomes considerably more difficult for a loved one to do this after a will maker’s death. However, there are certain situations where it is possible.

What are the duties of an executor of an estate?

An executor of an estate has a large amount of responsibility to make sure that the person in question has last wishes fulfilled after death. The executor does not need to be a legal expert, but he or she must put in adequate effort to be diligent and competent, as well as act with honesty at all times.

After the death of the will maker, the executor of the estate should identify all assets and decide whether going through probate is necessary. The executor should then contact all beneficiaries of the will and make sure the will is appropriately filed in probate court.

On what grounds can I remove an executor of an estate?

If you can show that an executor is not carrying out his or her duties or that the individual is acting dishonestly, you may be able to have him or her removed. In order to do this, you must have a stake in the assets and file a court proceeding stating why the executor should be removed. You should also request an estate audit so that your case and evidence can be strengthened.

If you would like to remove the executor of a loved one’s estate in New York, it is important to establish good reasons for wanting to do so.

Considerations in choosing an executor

If you, like many people across New York, are working on your estate plan, one of the many important decisions you may have to make involves who to name as your executor. The executor role involves a high level of trust and responsibility, so it is not a decision you should make without first devoting careful consideration to it. At the law offices of Joseph A. Ledwidge, P.C., we recognize the critical nature of naming the right person as executor, and we have helped many clients navigate this and related estate planning matters.

According to the American Bar Association, the executor has numerous responsibilities relating to getting your affairs in order after your death.  Executor duties might include paying estate taxes, paying claims against the estate, handling probate and notifying beneficiaries, among others, so it is important that you pick someone who you can trust to handle a lengthy list of important matters.

Some people prefer to entrust a close family member, such a surviving spouse, with executor duties, while others prefer to pay someone unbiased and impartial to adopt the role. There is no “right” answer about which option is better – it really depends on circumstances. If your spouse is in poor health and may pass on before you, for example, you may want to consider a paid executor. If your assets are not particularly considerable and you have a healthy spouse or trusted adult child, you may find it easier to appoint an unpaid executor.

You may also want to consider  appointing an executor who lives close to you, geographically. The person you name may need to make a series of appearances at your local court, so for this and related reasons, it can be burdensome to give the duty to someone who lives out of state. Arguably the most important consideration in naming an executor, however, is finding someone you trust to meet deadlines, manage money and handle your estate with integrity and dedication. Find out more about estate administration on our web page.

What is standing and how does it apply in will contests?

One of the most important questions for challenging a will, or for any civil litigation for that matter, is whether you possess standing. Standing is like the main gateway to pass through to start civil litigation. A New York court wants to know that you have a legitimate interest in contesting the will. If not, the court will not allow you to proceed.

As Findlaw describes, while laws regarding standing differ depending on the jurisdiction, typically a person who can contest a will is somebody who is already named on the will. Generally people who are named on a will but contest it feel that they are not receiving a proper portion of the inheritance or have problems with how certain assets will be distributed. Being named on a will can provide a huge advantage to receive standing.

On the other hand, some people may not have been named on the will, but that is not a disqualifier. A person can contest a will claiming that he or she should have been named on the will in the first place. In some cases the person contesting the will was named in a prior will, but was removed in a subsequent revision of the will. The excluded party may believe that they were removed unfairly or unintentionally and want to convince the court of their assertion.

The universe of people that have a chance of receiving standing is not very great. Outside of the decedent’s family members, such as children, stepchildren or spouses, people who are generally granted standing will include parties that may have legal claims against the decedent’s estate, such as creditors to whom the decedent owes money. There may also be parties that co-own property or assets along with the decedent and seek to gain full ownership.

This article is intended to educate readers on the subject of standing in will contests and should not be taken as legal advice.

Reasons to keep checking your beneficiary designations

Will the money in your retirement account actually go to your children as you intend? Unfortunately, not all New York residents can be sure. While you may list your children as your heirs in your will, you may have actually named someone else as the beneficiary on your retirement account or pension. As an article on the CNBC website points out , some people do not always update their designated beneficiaries, causing many would-be heirs to wage court battles to retrieve assets from a dead relative only to receive nothing for their pains.   

Sometimes problems arise in cases involving divorces. Someone may designate a wife or a husband as a beneficiary, but after a divorce, the individual fails to remove the divorced spouse as a designated beneficiary. Thus, when the person dies, the divorced spouse gets the assets instead of children, step-children or other heirs. Beneficiary designations can even trump divorce agreements where the ex-spouse has waived rights to receiving future assets. 

In other cases, the designated beneficiary may have passed away before the designator, leaving a retirement account, a 401(k), a savings account or an estate with no living designate to be passed to. If the owner of the assets does not install a new living beneficiary, the assets could land in the middle of a messy court fight to decide how they should be distributed.

Even if you heed the possible pitfalls of beneficiary designations and change your beneficiaries on some of your assets, there is the chance one or two of your designations could fall through the cracks if you are not careful. People generally do not pay equal attention to all of their holdings and it is possible to forget about one or two of them for a long period of time. For example, someone may forget about the name he or she put on a life insurance policy or on a retirement account with a previous employer and fail to update it in time.

Some New Yorkers may believe that beneficiary designations are no big deal if they just name their preferred heir on their will. A will is supposed to be ironclad, right? Actually, when a will and a beneficiary designation conflict, courts will often decide to go with the designation over the will. According to Marketwatch, it is a general rule that whatever name is listed as a beneficiary will trump any wishes expressed in a will or a living trust. So even wills are unlikely to survive a conflict with a beneficiary designation.

Why asset consolidation can help your estate planning

Important life decisions become even more crucial as you enter middle age. You likely have already implemented New York estate planning for your children, perhaps by setting up a will that leaves your assets and property to them when you pass away. However, it is possible that not all of your assets may end up in the hands of your loved ones. If you are not careful, some assets might slip through the cracks.

As Forbes points out, people accumulate a lot of assets over a lifetime. People in middle age have probably changed jobs several times and in the process have opened up different retirement plans at those jobs. You might have left several accounts floating around that you may not remember or do not regard as important since they have not reached maturity yet. Additionally, you may have made a number of small investments or own pieces of real estate. Over the years, these investments can add up.

The danger in holding so many investments is that you pass away without leaving your heirs paperwork that documents it all. The more investments you hold, the greater the possibility that one or more of them will be neglected or forgotten on your estate planning paperwork. Thus after your passing, your children will not even know that some of your investments or accounts exist and will not think to look for them. There is also no guarantee that they will be found during the process of probate.

One solution is to comprehensively list all of your assets in a will and make sure in writing that they pass on to your children. However, it may be better to consolidate your assets and financial accounts. You could consider selling off real estate holdings, or selling off investments that are not likely to yield a strong return. This makes managing your estate much easier, plus the probate process will go more quickly when the time comes. 

Another way to make sure some assets do not go missing is to set up a “pour over” will. Findlaw describes pour over wills as something you can add to a trust if you have set one up. This kind of will states that upon your passing, all assets that are not in your trust will be moved over to the trust. For example, if you own real estate in or outside the state of New York, a probate court will move that real estate into your trust, where it will be distributed as you instructed. This will help avoid lengthy probate proceedings and make sure your heirs receive your assets without long delays.