When an individual passes away without having a valid will in place, they’re deemed by the law to have died interstate—which means that the administration and distribution of their estate will be done in accordance with the legislation.
On the other hand, when you have a will, you can dictate the distribution of your estate and appoint an executor of choice who ensures your wishes are carried out.
Who Administers Your Estate When You Die Without A Will?
When an individual passes away interstate, and leave behind an estate that needs an administrator, an eligible person must has to apply with the Court for Letters of Administration. Whoever’s granted the Letters of Administration becomes the estate’s legal representative.
The following is a list of people who’re deemed eligible by the court to be an estate’s administrators:
The spouse of the deceased
The children of the deceased
The grandchildren and great-grandchildren of the deceased
The parent or parents of the deceased
The deceased’s siblings
The grandparent or grandparents of the deceased
The decease’s aunts and uncles
The first cousins of the deceased
Anyone else appointed by the court
When applying to become an estate’s administrator, each individual who has priority over the applicant has to be “cleared of the record.” For instance, if you’re the son/daughter of the deceased who’s applied for the letters of administration, the court will first ensure that the deceased didn’t have a spouse at the time of death.
If You Pass Away Without a Valid Will, Who Will Your Estate Go To?
The distribution of an interstate estate primarily depends upon the deceased’s circumstances. According to the Succession Act (Qld) of 1981, the estate of a deceased person will be bequeathed to their closest next of kin, with the spouse and the children getting first priority. If the deceased was married, but childless, then the spouse will inherit the entire estate.
If the deceased was married with children, then:
If the estate’s worth is less than $150,000, then the spouse will inherit the entire estate
If the estate’s worth exceeds $150,000 (excluding household goods), the spouse will inherit the $150,000 plus all the household goods, and 50% of the rest of the estate (if there’s one child), and 33% of the rest of the estate (if there are more than two children).
The will you make should ideally include details for how you would want all your assets to be settled and distributed amongst all your beneficiaries. People will add the different properties they own, the liquid money and valuables they have, and the money they expect to get to be distributed.
Most people would expect that money owed to you from your workplace would also end up in the same assets pile, but that’s not necessarily the case. The way your pension is moved around and if you’re able to pass it forward depends on a lot of different factors. Let’s have a look at what they are.
The Type of Pension
A major factor for whether you’ll be able to pass on your pension depends on what type of pension plan you have set up. Essentially there are two major types of pension plans that can be transferred to someone else.
You have the standard “Fixed Benefit” plan, which is a company-sponsored pension. This plan is a tax-free, company-sponsored fund that’s calculated on time served with the company and how much your salary was. The other option is a “Fixed Contribution” plan that relies on employees putting a bit of their own salary in a tax-free account, and the number is matched by their employer.
Who can Inherit a Pension?
Unlike your other assets, it’s not as easy to just give the money you have in your pension account away to any living friend or family member through your will. Pensions often come with a lot of legal terms attached to them that dictate where the money can go. Many pension plans are for one person only and may actually be wasted if you pass away before you claim it.
If you have the sort of pension plan that would allow you to transfer it forward, you would still only be able to give it to either your spouse or child officially. You may want to review what yours allows with the help of a litigation lawyer or an estate law attorney.
Claiming your Funds
To add the funds to your will, you would need a combination of the right factors, which would include things like your company’s policies on transferring pensions, your type of pension plan, and if you’ve been working long enough to actually get the pension claim, among a few other things.
Most people have their legacies, properties, and assets on their minds when drafting their Testament and Last Will. But several other things must be considered and specified in an estate plan.
For example, specifying what happens to your outstanding debts or those of a loved one after they pass away is crucial. If you owed a loan or debt in your lifetime, your family will be responsible for paying for it, depending on your estate’s size and value and the type of the loan.
Is it important to notify creditors?
After a person passes away, their estate executor is responsible for informing the person or institution that provided the debt. While the trust doesn’t mandate that the executors notify the creditors of the debtor’s passing away, doing so will allow the creditors to come forward within a shorter period, and the payment process will be smoother. Once the creditors are notified, they are given a specified period to claim their takings against the estate. Each creditor will be paid for their part from the estate’s proceeds.
If the deceased person didn’t create an estate plan during their lifetime, the probate court then assigns an administrator, who is typically from the immediate family or a close relative. Like a trustee or an executor, an administrator appointed by the court is also authorized to pay the deceased person’s debts from the estate’s takings.
What if two persons are responsible for debt?
In most mortgage cases, couples usually apply together. In this case, the surviving spouse or loan co-signer will be responsible for paying the debts. However, the probate court considers several factors before determining that the living partner should be paying for the joint debts. In some cases, selling the estate is enough to repay all the deceased’s outstanding debts, while in others, loan providers may settle on an amount lesser than the original debt.
A loved one’s death isn’t only emotionally turbulent, but it often also brings complicated financial and legal issues with it. An experienced and reliable probate attorney Queens or probate attorney Brooklyn can help you through each step of the process, from contesting and probating the will to removing an executor or administrator, ensuring complete protection of your rights.
If you’re looking for an experienced probate attorney in Brooklyn, Queens, Manhattan, or other NYC areas, get in touch with the law office of Ledwidge & Associates, P.C. today!
In New York, probate is necessary for assets solely owned by the deceased and haven’t been legally bequeathed to a designated beneficiary. This means that if the property owner passes away without a written will, the probate court will distribute the estate according to the state laws. However, if the property holder leaves behind a will that stands uncontested, the probate has a limited role to play.
What Are Probate And Non-Probate Assets?
Assets that can go through probate include solely-owned bank accounts, vehicles, antiques, cash, art pieces, and jewelry. On the other hand, non-probate assets include:
Any bank accounts with named beneficiaries.
Life insurance policies with named beneficiaries.
Jointly held real estate.
Assets held in a trust.
Probate may also not be necessary if:
The total value of the estate is not big.
The estate only comprises non-probate assets.
The deceased left behind an estate plan to avoid probate.
A Quick Look at the Probate Process
Here is the process that follows:
The executor starts off the process by filing the probate petition. For this, they need a copy of the deceased’s death certificate and the original will. Both of these documents need to go to the Surrogate’s Court of the County, where the deceased individual last lived. The exact filing fee depends on the total size of the estate.
The next step is to itemize the inventory. The executor will collect the deceased’s physical and non-physical assets and appraise them as of the date of death.
The executor will also use the estate funds to pay any outstanding debts, liabilities, and taxes. If the estate doesn’t comprise enough cash, they might need to sell one of the assets.
The next step is to notify the distributees (legal heirs). The formal notice is called a citation, which also goes to the Surrogate’s Court. The estate is then distributed according to the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).
Other than this, probate law also involves matter related to contesting a will, spousal rights, estate planning for blended families, and administration of a trust. If the process sounds overwhelming, try seeking help from a well-experienced probate attorney.
There is no better option in Brooklyn than The Law Offices of Joseph A. Ledwidge, P.C. Joseph Ledwidge attorney himself has around 20 years of experience in dealing with complex estate matters.
Try us out. We also offer services in Queens, Manhattan, and Jamaica.
When someone passes away, New York State inheritance laws
can influence how the estate is divided among surviving heirs. If the deceased
was married at the time of their death, this, too, can impact the probate process in New York.
However, even if the decedent was married at the time of their death, it does not mean that the surviving spouse will inherit their estate. There can be unique circumstances where the surviving spouse may not be entitled to inheritance.
State marital inheritance laws
require that an investigation regarding marital status be conducted to
determine the validity of the marriage. The investigation must also determine
whether there were divorce proceedings underway or if the divorce had been
finalized, pending approval by the Family Court.
To illustrate how a
surviving spouse may not be entitled to inheritance, let’s assume that a couple
had filed for divorce prior to the death of the decedent. They had reached a
separation and divorce settlement agreement and the agreement was accepted by
the Family Court.
Their agreement contained
specific wording that the divorced parties waived all rights to any
survivorship rights and benefits. However, due to backlogs, the judge was not
able to sign the official divorce judgment until after the decedent died.
Upon death, the surviving
spouse claims marital inheritance under New York State marital inheritance laws. They even
filed a right of election against the decedent’s estate because they want to
attempt to get their share of the estate.
Yet, the surviving children
know their parents were legally divorced. They contact a New York State probate lawyer
for assistance in proving their parents were divorced. While the divorce
judgment was not signed until after the decedent died, the judge had accepted
and granted the divorce when they appeared in court prior to the decedent’s
As such, the New York
Surrogate Court would conclude the decedent was divorced when they died.
Therefore, the surviving ex-spouse would not be entitled to a share of the
estate under spousal
Please keep in mind, this is
just one example and should not be viewed as binding legal advice, as every
situation involving marital status at the time of death can and does vary. It
is highly recommended to consult with a New York State probate lawyer if you need
assistance in addressing issues relating to marital status and inheritance
What if a Couple Is Legally Married at the Time of Death?
If the Surrogate Court determines the couple was still legally married at the time of death, and the surviving spouse is entitled to inheritance from the estate, then a few different things can occur. First and foremost, the Surrogate Court must determine if there is a will and whether the will is valid.
The Decedent Died with a Will
When there is a valid will,
then the probate process in New York will be used to execute the decedent’s
wishes as detailed in their will. The executor is officially named by the court
as listed in the will. The executor is responsible for settling the estate and
distributing inheritance to those named in the will.
If the decedent had
attempted to disinherit their spouse or leave them less inheritance than New York State inheritance laws
allow, the surviving spouse could file a right of election against the estate.
Upon death, surviving spouses in New York are entitled to receive what is
called an “elective share” of the decedent’s estate.
The elective share is equal
to $50,000 or one-third of the net value of the estate, whichever amount is
greater. In cases where the net value of the estate is less than $50,000, then
the amount the spouse is entitled to receive will be reduced accordingly.
If there are no issues
regarding marital inheritance and no one has any issues to contest the will,
the executor will distribute property and assets according to the decedent’s
The Decedent Died Without a Will
Dying without a will in New York
is handled differently from the probate process in New York. Instead, an administration
proceeding is scheduled with the Surrogate Court. New York State inheritance
laws and intestate laws will be applied to resolve the distribution of the
The judge will select an
administrator to serve as executor of the estate. The administrator has the
same duties and responsibilities as an executor, except they will follow
intestate laws to divide the estate.
The amount of the estate the
surviving spouse receives will be determined by New York State marital inheritance laws. If the couple had no children together, and
the decedent had no children outside of the marriage, then the spouse will
receive the entire estate.
If the couple had biological
or adopted children together, or if the decedent had children outside of the
marriage, then the surviving spouse receives $50,000 as their elective share,
plus half of the remaining balance of the estate.
Surviving children then
receive the other half of the remaining balance of the estate, which is
distributed evenly between each child. So, if there were $100,000 left in the
state after the surviving spouse received their elective share, and there were four
surviving children, then each child would receive $25,000. This is just an
example to illustrate how the intestate process works.
In cases where the
decedent’s spouse preceded him or her in death, then the surviving children
would receive the entire estate split equally among each child. Furthermore, if
there were children that preceded the decedent in death, who had children of
their own, then the grandchildren could have rights to the estate under New York inheritance law
and intestate laws.
In addition, when certain
assets are held jointly or where a beneficiary is named, such as bank accounts,
retirement accounts, insurance policies, and so on, then New York intestate
laws will distribute those assets to the joint account holder or named
If there is no named
beneficiary, then the asset is transferred to the decedent’s estate and is
distributed according to New
York inheritance law for intestate proceedings.
As you can imagine, dying without a will in New York can result in a very complex and involved administrative proceeding. Not to mention, the wishes of the decedent would not apply since there was no will. The best way to avoid placing your family into this situation is to take time to create a will with help from a New York State probate lawyer to ensure it is legal and valid.
Furthermore, when you have a
will, spousal inheritance
rights are limited by the elective share requirement. You are free to
decide how the remainder of your estate will be distributed to surviving heirs,
pets, charities, and others.
For instance, if you wanted
the bulk of your estate to be divided between your children, you would not have
to worry about your spouse receiving $50,000 plus half of the remaining balance
of the estate common with intestate proceedings.
Rather, your surviving
spouse would receive their $50,000, and the remainder of your estate would be
distributed to your children according to your wishes.
Whether you are a surviving
spouse attempting to ensure you receive your elective share of the decedent’s
estate or a surviving child who wants to protect your parent’s estate from
their spouse, it is essential to seek legal advice from a qualified New York State probate lawyer.
For assistance and legal
advice in matters relating to New York State marital inheritance laws, spousal inheritance rights, and New York State beneficiary laws in Jamaica, Queens, Brooklyn,
New York City, and Manhattan, please feel free to contact Joseph A. Ledwidge,
P.C. at 718-276-6656 today!
Drafting a last will and testament is not as simple as scribbling down a few notes on your deathbed and giving it to a trusted friend. In some cases, a handwritten “holographic will” like this could withstand a challenge in court, but an informal will is risky and ill-advised.
In fact, there are numerous ways that a will could be invalidated . It’s important to understand these potential will weaknesses so you can avoid having your will contested after you’re gone.
Problems with the way you signed the document
In most situations, you’ll want to have two different people present to “witness” your signing of the will. These people need to be non-beneficiaries. In other words, they will not be involved in any dispensation of the estate and they do not stand to benefit in any way from your will. Furthermore, they should not have a legitimate claim to inherit under state intestacy laws that would go into effect if no will were present.
The witnesses need to be present at the same time when you sign your will. They also need to sign the document while the others are watching.
Problems with testamentary capacity
You need to have “testamentary capacity” when you create and sign your will. To have testamentary capacity, you must understand (1) the value of your assets, (2) the people who will inherit your assets and (3) the effect of signing the will. If you are insane, temporarily insane, mentally incapacitated or suffering from dementia, at the time of signing your will, it could invalidate the document.
Problems related to undue influence
Imagine someone held a gun up to your head and said, sign this last will and testament in front of these two witnesses. Basically, you signed over all of your wealth to be inherited by the person holding the gun. This would be undue influence, and — so long as the influence becomes known — it would invalidate the will that you sign.
Problems related to fraudulent wills
A fraudulent will could be an entirely fabricated document. It could also be a document that other parties trick the testator into signing. One of the issues relating to a fraudulent will — or any potentially problematic will for that matter — is the fact that we cannot ask the testator what is correct because he or she is no longer here to answer questions.
Make sure you draft your will in a legally appropriate manner
Being careful with your will planning is essential. Don’t risk losing the legacy you leave behind because you made a simple mistake while planning you will. Learn about New York estate planning law and plan accordingly.
Your will is the one document that can explain everything you want to see happen with your estate after you pass away. Anyone can die at any time, and that’s why so many people insist that it’s important to have a will early in life. When you don’t have a will, it’s harder to know what will happen to your assets and who will end up benefiting from them.
In cases where a father or mother married to one another passes away, there’s little contest as to who should receive the assets of the family home. In these cases, the surviving spouse often receives the entire estate, except for in the case that a child or children are from previous marriages or relationships. In those cases, the surviving spouse gets up to half the estate, and the rest is doled out to the children.
When you die without a will , your state laws dictate what happens to your estate. Do you want to see your family struggle to obtain the things that you purchased or collected over the years? If not, then a will is the answer for you.
States do recognize spouses, blood relatives and registered domestic partners, but there can be trouble in other situations. For instance, if you’ve lived with your partner for five years but never married or registered as domestic partners, your partner, a girlfriend or boyfriend by law, would not be entitled to anything from the estate except for items in his or her name or shared in both your names. Unmarried partners, charities and friends get nothing by law if you pass away without a will.
There are a few exceptions to the rule. For example, if you have taken out a life-insurance policy and named beneficiaries , then the beneficiaries will receive the payout regardless of whether or not you have a will. The same normally applies to a retirement account if you’ve already named a beneficiary. If you haven’t taken the time to name a beneficiary on these accounts and pass away, the assets become part of the estate and are shared with those recognized as heirs. If you have no potential heirs, then the estate goes to the state.
Your attorney can help you draw up a will, so you know your beneficiaries will receive what you want them to. You can always alter the will, but it is necessary to have one as soon as possible.
Adults in New York who do not have an estate plan may want to consider making one. Most people include a will in an estate plan. A will is a document that indicates how an individual wants their assets distributed after their death, and it must be signed by two witnesses. Without a will, the state will decide what happens to the assets.
The people or parties who receive the assets are beneficiaries. Beneficiaries might be friends, family or organizations. A will also needs an executor. This is the person who is in charge of distributing the assets and administering the estate in other ways such as paying taxes and debts. The executor might be a friend or family member, but an attorney or a financial professional may be an executor as well.
An individual may want to appoint a separate social media executor who is in charge of the individual’s online life. This person can be responsible for closing an individual’s online accounts and profiles and handling their email. A social media will may be written separately from the regular will.
Individuals should periodically review and update their wills. Families and friendships change due to births, marriages, divorces, deaths and other transitions, and over time, an individual may want to choose different beneficiaries.
An individual who is considering preparing an estate plan may want to work with an attorney in doing so. Wills may be challenged due to incorrect preparation or even legal language that is not used correctly. Individuals who have found themselves appointed executors of a loved one’s will may also want to consult an attorney. Sometimes, a person may be appointed executor while lacking the legal and financial knowledge they feel they need to manage the estate. This may particularly be the case if the estate is a complex one.
Source: USA.gov, “Writing a Will,” Accessed April 21, 2015
New York residents who have prepared a will may know that a divorce, a remarriage or the death of a spouse will likely necessitate an evaluation of that document. In some circumstances, a will cannot be simply changed but must be completely revoked in order to be considered valid by a probate court.
A divorce is a circumstance that necessitates a complete revocation of a person’s will. In fact, a will’s provisions are instantly revoked following the divorce of the testator in many states including New York. Additionally, the ex-spouse’s name should be removed from a living trust, a living will and durable power of attorney documents, as well as life insurance policies, an IRA and pensions.
A marriage and the birth of children can be times for estate planning updates as well. It is very important that the new spouse be named in the will. Otherwise, New York courts will only allow the surviving spouse to inherit one-third of the assets with the remaining estate going to the children or the next closest family relations. Likewise, the will should appoint a guardian who will take care of minor children in the event both parents pass away.
A will should also be updated upon retirement or if the testator moves to another state. If the will does not comply with the particular state’s laws, it may be invalid. Keeping a will updated can help to ensure that beneficiaries are not burdened with complexities that may arise upon the distribution of the testator’s assets. A New York estate planning attorney can assist in the conduct of a periodic review of a client’s will and other important documents.
In the state of New York, a holographic will may be considered valid only under certain circumstances. A holographic will is a will that is handwritten and not executed in accordance with state law. The holographic will is valid if created by a member of the armed services during actual military or naval service. It may also be valid if the testator accompanies an armed force during actual armed conflict.
Finally, the holographic will may be considered valid if it is created by a mariner while at sea. The will may be considered void if the holographic will is associated with a testator who has been out of the military for at least one year. The same is true for someone who created a holographic will while accompanying an armed force.
Holographic wills are valid for mariners at sea for three years from the time the will was created. If at any time the creator of a valid holographic will loses testamentary capacity, the will may be valid for one year after regaining such capacity. All holographic wills authorized under New York state statutes are subject to such provisions to the extent to which they could be applied consistently with their character.
An estate planning attorney may be able to help anyone who wishes to create a will. If a will is handwritten, the attorney can help create a typed or printed version with witnesses to its creation. Doing so increases the odds that it will be accepted when entered into probate upon the testator’s passing. Estate planning attorneys may also be beneficial for those who are considering trusts as a way to convey assets to beneficiaries.