Intestate succession can be a thorny subject because the people involved are typically still grieving while trying to sort through a complicated situation. Unfortunately, once things reach that point, there is no other way to handle that matter.
Are you familiar with the intestate succession laws in New York State? If you are not, now is a good time to work on changing that. Throughout this article, we will discuss those laws in great detail so you can be better prepared for a potential intestate scenario. We will also highlight the ways you can avoid intestate succession to see if they make sense for your situation.
What Is Intestacy?
Estate planning is a must for about every adult. It is never too early to get your affairs in order so the people you care about the most remain protected even in the event of your untimely passing.
Still, not everyone takes part in estate planning. When an individual passes away without a will, they are said to have died intestate.
Dying intestate carries significant consequences. These consequences are particularly troubling because they could put the decedent’s loved ones in a tough spot. With no will protecting the best interests of the decedent’s loved ones, their fate will now depend on intestate succession laws. For this article, we will focus specifically on the intestate succession laws relevant to New York State residents.
What Are the Intestate Succession Laws in New York State?
What happens to the estate of a New York State resident who died without a will? According to New York State law, the estate of a person who died without a will must go to their living relatives. Therefore, the living relatives who are entitled to shares of the decedent’s estate are the distributees.
Certain relatives are prioritized over others when distributing the assets of a decedent’s estate. Let’s discuss different scenarios below and how assets of a decedent’s estate would be distributed based on their specific conditions.
The Decedent Has a Spouse and Children
First, let’s talk about how to handle the distribution of assets if the decedent has both a surviving spouse and children.
In the state of New York, spouses are entitled to receive an elective share of the decedent’s estate. The elective share consists of the first $50,000 of the estate, along with half of the intestate property’s balance.
For example, if the decedent leaves behind assets worth $550,000, their spouse would be entitled to receive assets that reach a total value of $300,000. We get to that number by taking the $50,000 sum out of the $550,000 total and dividing the remaining $500,000 between the two parties.
The decedent’s children will then divide the remaining $250,000 amongst themselves.
It is worth pointing out here that only the assets considered intestate property would become divided in the manner discussed above. Certain assets, like a joint bank account, would not be divided that way. If the decedent and their spouse shared that joint account, then it would become the sole property of the surviving spouse following the decedent’s passing.
The Decedent Has a Spouse but No Children
This is the simplest scenario that involves intestate succession. For example, if the decedent left behind a spouse but had no children, then the spouse would be entitled to the entirety of the decedent’s estate.
No one else would be eligible to get anything from the estate.
The Decedent Had Children but No Spouse
A scenario where the decedent had children, but no spouse is also relatively simple to parse through in certain respects. It is simple to understand from the standpoint that the children will inherit everything left behind.
However, there may be questions about the eligibility of the children claiming the inheritance. New York law requires the existence of a legal parent-child relationship before a child is deemed eligible to stake their claim to a decedent’s estate. That legal parent-child relationship could take on different forms.
The known biological children of the decedent born from a previous marriage can claim their respective shares of the decedent’s estate. Children born outside of marriage are also eligible to receive assets from the decedent’s estate as long as they can establish paternity. Adopted children can also seek their share of the decedent’s estate.
Grandchildren can also claim inheritance. They become eligible for that inheritance if their parents died before the decedent.
The Decedent’s Posthumous Children
We also need to discuss special cases involving the decedent’s posthumous children.
Any children of the decedent born after their passing qualify to receive an inheritance. We are not only referring to children who the decedent conceived with a partner prior to their passing. Children born through artificial insemination are also eligible to receive an inheritance from the decedent.
Crucially, there are certain conditions that you must meet before a child born through artificial insemination becomes eligible to receive assets from the decedent’s estate,
First, the decedent should have indicated in a written instrument that they consent to have their genetic material used to conceive a child not more than seven years after their passing. The written instrument should also note that the decedent would be the child’s parent if reproduction occurred.
The surviving partner should also provide a written instrument indicating that the deceased individual authorized them to make decisions about their genetic material.
One more condition states that the child conceived using the decedent’s genetic material should be in utero no later than 24 months after the decedent’s passing or born no later than 33 months after their death.
The Decedent Had Living Parents but no Children or Spouse
New York State prioritizes the decedent’s spouse and children with its intestate succession laws. So, what happens if no spouse or children can claim the assets the decedent left behind? In that case, the law will consider the decedent’s other relatives.
First in line at that point would be the decedent’s parents. The parents will inherit everything the decedent left behind.
The Decedent Had Siblings but No Spouse, Children, or Living Parents
Your siblings may also become eligible to inherit your assets if you died intestate. That scenario may come to pass if you had no surviving spouse, children, grandchildren, or parents at the time of your passing. They will receive everything remaining in your estate.
Other Relatives Who May Become Eligible to Inherit Assets from Your Estate
Aside from the people we have already mentioned above, you still have other relatives who could stake a claim to your assets if you died intestate.
For instance, let’s assume that your siblings are already the ones in line to inherit your estate. However, one of your siblings died before you. In a situation like that, the share of your estate that should have gone to your sibling will instead go to their children. That means your nieces or nephews are getting assets directly from your estate at that point.
Your grandparents may also benefit from your estate if you have no surviving spouse, children, parents, or siblings. Both your paternal and maternal grandparents will be given assets from your estate. The assets will be divided among them equally.
After your grandparents, your paternal and maternal aunts and uncles enter the picture. Once again, they will receive equal shares of your estate.
Even your cousins may eventually be considered by the court as your potential heirs.
The intestate succession laws in New York State compel the court to consider all potential heirs when deciding how to handle a decedent’s estate. That is evident when you see how the established chain of succession works.
What Happens if You Have No Living Relatives Who Can Inherit Your Assets?
Given how thorough the intestate succession laws are in New York State, the odds of the court finding no qualified heirs for a decedent’s estate is low. However, chances are they can contact someone at some point who is eligible to be your heir.
Still, we cannot dismiss the possibility that they will not find any heirs. What happens if that hypothetical scenario becomes a reality?
Since there are no heirs, New York State will now be allowed to take control of the assets in your estate.
You do not want something like that to happen. In all likelihood, you have friends who can make good use of your assets after your passing. There may also be charities you want to support instead of letting your money fall into the hands of the state.
Dying intestate means losing control of how they will manage your estate. To prevent that from happening, you should get into estate planning as soon as possible.
Estate Planning Options to Avoid Intestacy
New York State taking control of your estate is probably not an ideal scenario in your mind. If you are on bad terms with some family members, you also likely want them to stay far away from your assets.
How do you ensure they will handle your assets correctly after your death? People commonly use two estate planning methods to avoid intestacy: creating a will and setting up a trust. Let’s talk a bit more about those options below.
Create a Will
Creating a will is the simplest way to avoid having your assets end up in the hands of people you are no longer on good terms with.
Some people are put off by the idea of creating a will because they think it is too bothersome of a task. They already have a lot on their plate and would rather not deal with creating a will.
That sentiment is understandable, but it is also mistaken to some disagree. While drafting the contents of your will certainly requires considerable thought and deliberation, the process of actually creating it is relatively simple.
The testator, also known as the person creating the will, only needs to meet certain requirements. Those requirements include being at least eighteen and having a sound mind and memory when they create the document.
You must also have witnesses who can attest to you signing the will, but you have some leeway. The witnesses do not need to be in the same room with you when you sign your will. Instead, they can provide statements confirming that you signed your will, which is good enough.
Set Up a Trust
People can also avoid the consequences of intestacy by setting up a trust.
You can set up a trust to house your assets and keep them there until you want them distributed to your heirs. Trusts can hold all kinds of assets. As a result, they are among the most versatile estate planning tools available.
Creating a trust that will hold your assets is also wise if you want to shield them from certain taxes. In addition, by managing your assets that way, you can ensure that your heirs will receive a larger share of your estate.
You should set up a trust and write a will if you do not want your heirs dealing with the consequences of your intestacy. However, if you only have a trust in place, some of your assets could still become subjected to New York State’s intestate succession laws.
Other Ways to Avoid Intestate Succession Laws
Avoiding intestate succession laws is also possible if people take advantage of certain asset distribution instruments.
Those instruments include life insurance policies. Only the beneficiaries you named in those policies can claim your death benefits.
You can also purchase assets to pass them on to specific beneficiaries in the event of your passing. Make use of transfer mechanisms to ensure that those assets will end up with your preferred heirs.
Do not leave the fate of your estate to New York State’s intestate succession laws. Instead, work closely with us at the Alber Law Group, and we will help you set things up properly for your preferred heirs.