Probate and Wills
“Probate” is the court proceeding which determines whether a Will (aka Last Will and Testament) is valid. If the Will is found to be properly signed with legal formalities, the executor named in the Will oversees the payment of debts, taxes and distribution of estate assets. If you don’t have a Will, the laws of the state in which you legally reside (file tax returns, register your car and vote) will spell out who gets what, and who is in charge of carrying out the process. In New York, the Surrogate’s Court in the county where you live has jurisdiction over probate.
If you die without a Will, instead of offering a Will for probate, a petition is filed for “letters of administration.” The Surrogate’s Court generally appoints a family member (from a permitted list) to handle the estate administration. Who gets what is dictated by the laws of “intestacy,” if you don’t make a Will. “Intestate” means dying without a Will.
People often ask what happens if you do or do not have a Will. Here’s how it works:
If You Have a Will
If you have a Will, you have the freedom to specify who will get what. You can also:
- Name a guardian for minor children.
- Create a trust under your will for your spouse, children or a special needs relative.
- Name an executor to carry out your wishes.
In addition to distributing assets to your beneficiaries, the executor makes sure your debts are paid, title transfers are made and similar administrative matters like closing banking accounts are done. While certain assets pass by beneficiary designations (e.g. life insurance, pension and IRA benefits, etc.) or by title on a deed (real estate held in joint names), for the most part your will provides the blue print for what happens after your death.
If You Don’t Have a Will
Some people think that if they don’t have a Will, the state or “government” will get their money. That is not the case. Who gets what is determined based on who are your closest living relatives. Under New York law, here’s what happens:
- If you have a spouse and issue (i.e. children and/or grandchildren) your spouse will get $50,000, and your spouse and children will share the rest 50/50. Children collectively receive 50%.
- If a child has died, his children will equally split their parent’s share.
For example, if a person has three children, Andy, Betty and Carol, and Carol dies leaving Dexter and Edith, Dexter and
- Edith will each get ½ of Carol’s 1/3rd share.
- If you have a spouse, but no children, your spouse gets it all.
- If you have children and no spouse, your children share by right of representation. This means if there are three children, each will get a third.
- If you have no children and no spouse, but have parents, it will all go to your surviving parent(s).
- If you have no children, spouse or parents, it will go to your siblings.
- If you have no children, spouse, parents or siblings, it will go to descendants of your grandparents.
Administrator Appointed if No Will
Without a Will, the Surrogate’s court appoints an “administrator,” who is issued “letters of administration” and handles the same type of tasks as an executor. Those eligible to serve as administrator include: surviving spouse, children, grandchildren, father or mother and sisters and brothers.
If there are several people who want to serve, preference is given to those who stand to inherit the largest share of the estate. In New York, letters cannot be issued to a minor, an incompetent, a felon or a substance abuser. Also, out-of staters face certain challenges to get permission to serve.
Problems You Avoid By Having a Will
If you write a Will, you can make decide what will happen to your assets. If you have minor children, and pass away without a guardian appointed, the court will step in and appoint a guardian. It is much better to have a say in a decision like that, than leaving it up to your relatives to hash it out.
With estate planning, one thing is quite clear. There is time to plan up until the day you die. And then it becomes too late. Make sure things go the way you want them to by taking the time to write a Will. Please contact our firm, Susan G. Parker, Esq. PC, at (914) 923-1600 to get the process started.