Dying Without A Will

wills and trusts attorneysWhen an individual dies who has no will, the distribution of his or her estate is determined by the Intestacy Law of the state in which the person died in. In the State of New York, individual’s estates who die without a will are distributed as follows:

1. The first $50,000 goes to the spouse, if there is a spouse. The balance of the estate is divided 50% to the spouse (if there is a spouse) and 50% to the children.
2. In the event there is no spouse, the estate is equally divided among the children. If one of the children predeceases the individual who dies, that child’s children (the grandchildren) receive his or her share.
3. If the individual who dies has no spouse and no children, his or her assets go to his mother and father.
4. In the event the individual who dies has no spouse, no children, and the mother and father predeceased him or her, the assets are equally divided among his or her brothers and sisters.
5. In the event an individual dies who has no spouse, no children, the parents have predeceased and their brothers and sisters have predeceased, the nieces and nephews receive the estate.

Testamentary Substitutes

Even if an individual dies without a will, certain assists, called testamentary substitutes, go directly to the beneficiary named within the terms of the asset. Examples of testamentary substitutes are life insurance policies, bank accounts with named beneficiaries, annuities with named beneficiaries, individual retirement accounts and 401(k)’s that have named beneficiaries within the policies.

Appointing An Administrator

When an individual dies without a will, a family member or next of kin must petition the Surrogate’s Court in the county in which the individual resided to be named as Administrator of the Estate. Upon petitioning the court, the Administrator can be granted “Letters of Administration.” This gives the Administrator authority to act on behalf of the estate. The Administrator then marshals the decedent’s assets, pays all outstanding bills and thereafter distributes the balance of the estate to the appropriate heirs. The Administrator also must file State and Federal estate tax returns when necessary.

The Administrator is entitled to a fee pursuant to statute for his or her handling of the estate. This fee is over and above any funds the Administrator inherits in his or her capacity as an heir.estate planning for the elderly