If someone dies with a Will in place, the process by which it goes through the Court system is called “Probate,” with assets being distributed as is set forth in the Will. If someone does “intestate,” meaning without a will, then the Court process for distributing the estate is called “Administration.”
Nothing Good Happens If You Die Without a Will
If you have not prepared a Will prior to your untimely demise, all of your possessions will be distributed in the way set forth in statute. One is referred to as “intestate” if they have no Will for succession of their assets, and the statutory method for distribution of that person’s assets is called “intestate succession.”
In New York, the following Occurs with the decedent’s assets, called the “estate,”:when there is no will:
- If there is a surviving spouse and no children, spouse takes all
- If there is a surviving spouse and children, surviving spouse receives $50,000 and one half of the balance, and the children receive the other half of the balance, and if a child does not survive then that child’s children take their share
- If there are children, but no surviving spouse, children take all
- If there is no spouse or children, surviving parents take all
- If no spouse, children or parents, the it moves sideways to surviving siblings
- If no spouse, children, parents or siblings, then grandparents, under very intricate terms and standards (very “who’s on first.”)
- If no spouse, children, parents, siblings or grandparents, then grandchildren of grandparents
- If no close relatives, then more distant relatives will take, after specialized proceedings
- If no close or distant relatives come forward or are found, the property falls as abandoned property under the abandoned property laws of the State of New York
Keep in mind that this only involves assets that pass through the estate, not those pass outside of the estate. Examples of this would include life insurance policies or any other type of asset or account that has a beneficiary or beneficiaries. If there are joint bank accounts, those will fall to the other owner of the account, not into the estate of the decedent.
Real estate will transfer in a fashion consistent with ownership, though if the decedent is the only owner, it will transfer as part of the estate. If a married couple purchased real property as tenants by the entirety, then the property passes to the spouse by operation of law, not through intestate succession. This is not true if the couple purchased the property pre-marriage, or if was owned by only one party pre-marriage. If the decedent owns the property with someone in a joint tenancy with survivorship rights, the property passes to the survivor by law, not through intestate succession. But, if the property is held in joint tenancy with another person and there are no survivorship rights, then the portion belonging to the decedent will transfer by intestate succession. It should be clear that, in purchasing real property, it is extremely important to be certain that the fashion in which you take ownership is consistent with your ultimate goals and that deeds reflect those goals properly.
Administration of the Estate v. Probate of the Will
Wills have an Executor appointed to administer the estate of the decedent, placing the Will into probate proceedings. Absent a Will, a similar process occurs which is called an administration of the estate and an Administrator needs to be appointed to handle the decedent’s estate. Just as there is an intestate succession for distribution of the decedent’s estate, there is a priority to who has the right to become Administrator. The priority runs in a line very similar to distribution itself.
If the distribution that will occur by law if you have no Will, and having someone administer your estate that you have not chosen, then having a Will has little impact on your plans. You would be one of the very rare people who want the government to divide your assets without your input.
If you would like to discuss the division of assets in an estate through probate or administration, Contact Diana at your convenience.