A lot of people who have not started estate planning often ask if they really need a will, or if any estate planning is really necessary? Usually, it is followed with a statement about how the children will take care of it, or that the situation is pretty straight forward, so why deal with it. The truth is if you have no children, no spouse, no heirs, and few worldly possessions then you can probably get away with not needing a will. Otherwise, a will and other estate planning documents are very important for your wellbeing and for your loved ones.
Why You Need a Will
One of the most basic tasks a will accomplishes is naming an executor or executrix of your estate. This is the person who will handle all of your affairs after you pass on. This includes gathering all assets of your estate, paying debts or taxes owed, and distributing the remaining property to your heirs. If you do not have a will the court will appoint an executor to your estate. That person may not be aware of what your final wishes were for your property or know what you wanted your heirs to receive.
If you die without a will you are considered intestate and your estate goes into intestacy. That means that your state court and the state laws will determine who gets what from your estate. These rules vary from state to state, but generally the immediate family will get the assets first. The proportion of assets also differs from state to state between the spouse, children, and any living parents.
If you are single and die without children or surviving parents the probate court will decide who is the most important of your remaining relatives. If there is no one then the assets in the estate go to the state. Friends, charities, and the like are not usually considered for an intestate estate.
New York Intestacy
In New York, intestate succession depends on whether or not you have a spouse, children, or surviving parents. A quick overview of intestacy is as follows:
Descendants but no spouse: Descendants inherit everything
Spouse but no descendants: Spouse inherits everything
Spouse and descendants: Spouse inherits first $50,000 and one half of the remaining balance of the estate, descendants inherit everything else
Parents but no spouse and no descendants: Parents inherit everything
Siblings but no spouse, descendants, or parents: Siblings inherit everything
Descendants apply to children, grandchildren, and great-grandchildren. Children’s shares in New York intestacy depend on the number of children and whether or not you are married. In addition, in order for the children to inherit in intestacy they must be yours legally.
Adopted children: Receive the same share as biological children
Foster children and stepchildren: Not legally adopted and therefore do not automatically get a share
Children placed for adoption: Children legally adopted by another family will not get a share. Biological children adopted by your spouse will get an intestate share.
Posthumous children: Your death prior to their birth will not affect the intestate share
Children born out of wedlock: For a father’s intestate estate the child born out of wedlock must have acknowledged paternity by the father or be established in some other way under New York law
Grandchildren: These descendants only get an intestate share if their parent has died before them